Exhibit 10.23
-------------
CONFORMED COPY
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
February 14, 2001,
as amended and restated as of
March 30, 2001
among
ALAMOSA HOLDINGS, INC.,
ALAMOSA (DELAWARE), INC.,
ALAMOSA HOLDINGS, LLC,
The Lenders Party Hereto,
EXPORT DEVELOPMENT CORPORATION,
as Co-Documentation Agent,
FIRST UNION NATIONAL BANK,
as Documentation Agent,
TORONTO DOMINION (TEXAS), INC.,
as Syndication Agent,
and
CITICORP USA, INC.,
as Administrative Agent and Collateral Agent
---------------------------
EXPORT DEVELOPMENT CORPORATION and
FIRST UNION SECURITIES, INC.,
as Lead Arrangers,
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC. and
TD SECURITIES (USA) INC.,
as Joint Lead Arrangers and Joint Book Managers
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms.....................................5
SECTION 1.02. Classification of Loans and Borrowings...........41
SECTION 1.03. Terms Generally..................................41
SECTION 1.04. Accounting Terms; GAAP...........................42
ARTICLE II
The Credits
SECTION 2.01. Commitments......................................42
SECTION 2.02. Loans and Borrowings.............................43
SECTION 2.03. Requests for Borrowings..........................44
SECTION 2.04. Letters of Credit................................45
SECTION 2.05. Funding of Borrowings............................50
SECTION 2.06. Interest Elections...............................51
SECTION 2.07. Termination and Reduction of Commitments ........53
SECTION 2.08. Repayment of Loans; Evidence of Debt.............54
SECTION 2.09. Automatic Commitment Reductions;
Amortization of Term Loans.....................55
SECTION 2.10. Prepayment of Loans..............................57
SECTION 2.11. Fees.............................................59
SECTION 2.12. Interest.........................................60
SECTION 2.13. Alternate Rate of Interest.......................61
SECTION 2.14. Increased Costs..................................62
SECTION 2.15. Break Funding Payments...........................63
SECTION 2.16. Taxes............................................64
SECTION 2.17. Payments Generally; Pro Rata
Treatment; Sharing of Set-offs.................65
SECTION 2.18. Mitigation Obligations; Replacement
of Lenders.....................................67
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.............................69
SECTION 3.02. Authorization; Enforceability....................69
SECTION 3.03. Governmental Approvals; No Conflicts.............69
SECTION 3.04. Financial Condition; No Material
Adverse Change.................................70
SECTION 3.05. Properties.......................................71
SECTION 3.06. Litigation and Environmental Matters.............72
SECTION 3.07. Compliance with Laws and Agreements .............72
SECTION 3.08. Investment and Holding Company Status ...........73
SECTION 3.09. Taxes............................................73
SECTION 3.10. ERISA............................................73
SECTION 3.11. Disclosure.......................................73
SECTION 3.12. Restricted Subsidiaries..........................74
SECTION 3.13. Absence of Non-Permitted Obligations.............75
SECTION 3.14. Licenses.........................................75
SECTION 3.15. Insurance........................................75
SECTION 3.16. Labor Matters....................................76
SECTION 3.17. Solvency.........................................76
SECTION 3.18. Use of Proceeds..................................77
SECTION 3.19. FCC Compliance...................................77
SECTION 3.20. Security Documents...............................78
SECTION 3.21. Copyrights, Trademarks, etc......................79
SECTION 3.22. Federal Regulations..............................79
SECTION 3.23. Total Borrower Capital...........................79
1
ARTICLE IV
Conditions
SECTION 4.01. Restatement Effective Date.......................79
SECTION 4.02. Each Credit Event................................86
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information.......87
SECTION 5.02. Notices of Material Events.......................90
SECTION 5.03. Information Regarding Collateral.................90
SECTION 5.04. Existence; Conduct of Business...................91
SECTION 5.05. Payment of Obligations...........................92
SECTION 5.06. Maintenance of Properties........................92
SECTION 5.07. Insurance........................................92
SECTION 5.08. Casualty and Condemnation........................92
SECTION 5.09. Books and Records; Inspection
and Audit Rights...............................92
SECTION 5.10. Compliance with Laws.............................93
SECTION 5.11. Use of Proceeds and Letters of Credit............93
SECTION 5.12. Additional Subsidiaries..........................93
SECTION 5.13. Further Assurances...............................93
SECTION 5.14. Interest Rate Protection.........................95
SECTION 5.15. Post-Closing Matters...........................95
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities .........96
SECTION 6.02. Liens............................................99
SECTION 6.03. Fundamental Changes.............................100
SECTION 6.04. Investments, Loans, Advances,
Guarantees and Acquisitions...................102
SECTION 6.05. Asset Sales.....................................103
SECTION 6.06. Sale and Leaseback Transactions.................105
SECTION 6.07. Hedging Agreements..............................105
SECTION 6.08. Restricted Payments; Certain
Payments of Indebtedness......................106
SECTION 6.09. Transactions with Affiliates....................107
SECTION 6.10. Restrictive Agreements..........................108
SECTION 6.11. Amendment of Material Documents.................109
SECTION 6.12. Certain Financial Covenants.....................109
SECTION 6.13. Liabilities of Special Purpose Subsidiaries.....113
SECTION 6.14. Designation of Unrestricted Subsidiaries........113
2
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notice..........................................122
SECTION 9.02. Waivers; Amendments.............................122
SECTION 9.03. Expenses; Indemnity; Damage Waiver..............125
SECTION 9.04. Successors and Assign...........................127
SECTION 9.05. Survival........................................130
SECTION 9.06. Counterparts; Integration; Effectiveness........130
SECTION 9.07. Severability....................................131
SECTION 9.08. Right of Setoff.................................131
SECTION 9.09. GOVERNING LAW; JURISDICTION;
CONSENT TO SERVICE OF PROCESS.................131
SECTION 9.10. WAIVER OF JURY TRIAL............................132
SECTION 9.11. Headings........................................133
SECTION 9.12. Confidentiality.................................133
SECTION 9.13. Interest Rate Limitation........................134
SECTION 9.14. Release of Subsidiaries.........................134
SECTION 9.15. ▇▇▇▇▇▇▇ Term Loans, WOW Term
Loans and Southwest Term Loans................135
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.05 -- Real Property
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.14 -- Network Area/Licenses
Schedule 3.15 -- Insurance
Schedule 3.22 -- Mortgaged Property
Schedule 4.01 -- Consents and Approvals
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Investments
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
--------
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Borrower's Counsel
Exhibit B-2 -- Opinion of Sprint's Counsel
Exhibit B-3 -- Form of Opinion of Local Counsel
Exhibit C -- Form of Amended and Restated Guarantee Agreement
Exhibit D -- Form of Amended and Restated Indemnity,
Subrogation and Contribution Agreement
Exhibit E -- Form of Amended and Restated Pledge Agreement
Exhibit F -- Form of Amended and Restated Security Agreement
Exhibit G -- Form of Amended and Restated Consent and Agreement
3
AMENDED AND RESTATED CREDIT AGREEMENT dated as of February 14, 2001,
as amended and restated as of March 30, 2001 (this "Agreement"), among ALAMOSA
HOLDINGS, INC., a Delaware corporation ("Superholdings"), ALAMOSA (DELAWARE),
INC., a Delaware corporation formerly known as Alamosa PCS Holdings, Inc.
("Alamosa Delaware"), ALAMOSA HOLDINGS, LLC, a Delaware limited liability
company (the "Borrower"), the LENDERS party hereto, EXPORT DEVELOPMENT
CORPORATION, as Co-Documentation Agent (the "Co-Documentation Agent"), FIRST
UNION NATIONAL BANK, as Documentation Agent (the "Documentation Agent"),
TORONTO DOMINION (TEXAS), INC., as Syndication Agent (the "Syndication Agent"),
and CITICORP USA, INC. as Administrative Agent and Collateral Agent (the
"Administrative Agent").
Superholdings, Alamosa Delaware, the Borrower, the Lenders, the
Co-Documentation Agent, the Documentation Agent, Syndication Agent and the
Administrative Agent are parties to a Credit Agreement dated as of February 14,
2001 (the "Original Credit Agreement"), pursuant to which the Lenders have
extended credit in the form of (a) Term Loans during the Term Availability
Period in an aggregate principal amount not in excess of $240,000,000, including
$20,000,000 of ▇▇▇▇▇▇▇ Term Loans and $10,000,000 of WOW Term Loans, and (b)
Revolving Loans during the Revolving Availability Period in an aggregate
principal amount not in excess of $40,000,000. On February 14, 2001 (the
"Original Effective Date"), the Borrower borrowed $150,000,000 of Term Loans
under the Original Credit Agreement, including $20,000,000 of ▇▇▇▇▇▇▇ Term Loans
and $10,000,000 of WOW Term Loans.
The Borrower has requested that the Original Credit Agreement be
amended and restated by this Agreement in order to provide for an extension of
credit by the Lenders in the form of (a) Term Loans during the Term Availability
Period in an aggregate principal amount not in excess of $293,000,000, including
$53,000,000 of Southwest Term Loans, $20,000,000 of ▇▇▇▇▇▇▇ Term Loans and
$10,000,000 of WOW Term Loans, and (b) Revolving Loans during the Revolving
Availability Period in an aggregate principal amount not in excess of
$40,000,000, and to make certain other changes to the terms and conditions of
the Original Credit Agreement.
Pursuant to or in connection with: (A) an agreement and plan of merger
(the "Southwest Agreement") entered into among Superholdings, Forty Acquisition
Inc., a Delaware corporation and a direct wholly owned subsidiary of
Superholdings ("Southwest Merger Sub"), Southwest PCS Holdings, Inc., a Delaware
corporation ("Southwest Holdings"), and Southwest Holdings's stockholders,
Southwest Holdings will merge with and into Southwest Merger Sub, with Southwest
Holdings surviving the merger, in a transaction in which the stockholders of
Southwest Holdings receive merger consideration consisting of common stock of
Superholdings and up to $5,000,000 in cash (such transaction being referred to
herein as the "Southwest Merger Transaction").
4
In connection with the Southwest Merger Transaction and immediately
following the consummation thereof, (a) Alamosa PCS Holdings, Inc., a Delaware
corporation, will merge with and into Southwest Holdings, with Southwest
Holdings surviving the merger but with such surviving entity retaining the name
Alamosa PCS Holdings, Inc. ("APCS"), (b) APCS will contribute 100% of its
ownership interests in SWGP, L.L.C. and SWLP, L.L.C., each an Oklahoma limited
liability company (collectively, the "Oklahoma LLCs"), to Alamosa Delaware, (c)
Alamosa Delaware will contribute 100% of such ownership interests in the
Oklahoma LLCs to the Borrower, (d) on the date hereof, Alamosa Delaware will
make an equity contribution (the "Additional Alamosa Delaware Contribution") to
the Borrower of not less than $22,000,000, (e) the Borrower will obtain the
amended and restated senior secured credit facilities provided for in this
Agreement, (f) the existing $60,000,000 bank credit facility of Southwest PCS,
L.P., a wholly owned subsidiary of the Oklahoma LLCs ("Southwest" and, together
with the Oklahoma LLCs, the "Southwest Entities"; the Southwest Entities,
together with Southwest Holdings, the "Targets"), with BNP Paribas (the
"Southwest Facility") will be terminated, all commitments thereunder will be
canceled and all outstanding indebtedness thereunder will be repaid and all
other indebtedness of the Targets, including (1) the $12,500,000 senior
subordinated debentures held by Paribas Capital Funding, LLC, (2) the $7,500,000
junior subordinated debentures held by Allied Capital Corp. and (3) the
$7,000,000 note held by Chickasaw Holding Company, will be terminated and all
outstanding indebtedness thereunder, including accrued interest thereon, will be
repaid and (g) fees and expenses in connection with the Southwest Transactions
(as defined below) in an aggregate amount of approximately $11,603,000 (the
"Transaction Costs") will be paid. The transactions described in this paragraph,
together with the Southwest Merger Transaction are collectively referred to
herein as the "Southwest Transactions".
In connection with entering into the Original Credit Agreement and
pursuant to or in connection with: (A) an agreement and plan of reorganization
entered into among Alamosa Delaware, Superholdings, Alamosa Sub I, Inc., a
Delaware corporation formed by Superholdings ("Merger Sub") and ▇▇▇▇▇▇▇ Wireless
Communications L.L.C., a Delaware limited liability company ("▇▇▇▇▇▇▇") and the
members thereof, (a) the members of ▇▇▇▇▇▇▇ formed a new limited liability
company ("RW Holdings") that owned all the outstanding equity interests in
▇▇▇▇▇▇▇, and (b) RW Holdings merged with and into Superholdings, with
Superholdings surviving the merger, in a transaction in which the members of RW
Holdings received merger consideration consisting of common stock of
Superholdings and up to $4,000,000 in cash (such transactions being referred to
herein collectively as the "▇▇▇▇▇▇▇ Merger"); and (B) an agreement and plan of
reorganization entered into among Alamosa Delaware, Superholdings, Merger Sub
and Washington Oregon Wireless, LLC, a Delaware limited liability company
("WOW") and certain of the members thereof, (a) the members of WOW formed a new
limited liability company ("WOW Holdings") that owned all the outstanding equity
interests in WOW, and (b) WOW Holdings merged with and into Superholdings with
Superholdings surviving the merger, in a transaction in which the members of WOW
Holdings received merger consideration consisting of common stock of
Superholdings and up to $12,500,000 in cash (such transactions being referred to
herein collectively as the "WOW Merger"). In connection with the foregoing and
immediately following the consummation of the ▇▇▇▇▇▇▇ Merger and the WOW Merger
(i) pursuant to an agreement and plan of reorganization among Alamosa Delaware,
Alamosa PCS Holdings, Inc., Superholdings and Merger Sub, Alamosa PCS Holdings,
Inc. merged with and into Merger Sub with Alamosa PCS Holdings, Inc. surviving
the merger as a wholly owned subsidiary of Superholdings in a transaction in
which the shareholders of Alamosa PCS Holdings, Inc. received merger
consideration consisting of common stock of Superholdings and (ii) Superholdings
became a publicly held corporation. The transactions described in this paragraph
are referred to herein as the "▇▇▇▇▇▇▇/WOW Merger Transactions" and, together
with the Southwest Merger Transaction, the "Merger Transactions".
In addition, in connection with the ▇▇▇▇▇▇▇/WOW Merger Transactions
and immediately following the consummation thereof, (a) Superholdings
contributed 100% of its ownership interests in ▇▇▇▇▇▇▇ and WOW to Alamosa PCS
Holdings, Inc., (b) Alamosa PCS Holdings, Inc. contributed 100% of such
ownership interests in ▇▇▇▇▇▇▇ and WOW to Alamosa Delaware, (c) Alamosa Delaware
contributed 100% of such ownership interests in ▇▇▇▇▇▇▇ and WOW to the Borrower,
(d) Alamosa Delaware contributed 100% of the equity interests in Alamosa PCS,
Inc. ("Alamosa") to the Borrower, (e) on the Original Effective Date, Alamosa
Delaware or a subsidiary thereof made an equity contribution (the "Alamosa
Delaware Contribution") to the Borrower of not less than $150,000,000 by (i)
contributing to the Borrower (or its subsidiaries) outstanding loans theretofore
made by Alamosa Delaware or a subsidiary thereof to ▇▇▇▇▇▇▇ or its Affiliates
and WOW and/or by (ii) making a direct or indirect cash contribution to the
equity of the Borrower, in an amount equal to the amount, if any, by which the
required equity contribution exceeds the principal amount plus accrued interest
thereon of such contributed loans, (f) on the Original Effective Date, Alamosa
Delaware contributed to the Borrower and/or one or more subsidiaries thereof an
amount equal to $178,500,000 of the net proceeds from the issuance of the 12
1/2% Senior Notes due 2011 of Alamosa Delaware, (g) the existing $175,000,000
bank credit facility of Alamosa with the Export Development Corporation (the
"EDC Facility") was terminated, all commitments thereunder were terminated and
all outstanding indebtedness thereunder was repaid, (h) the Borrower obtained
the senior secured credit facilities provided for under Original Credit
Agreement and (i) fees and expenses in connection with the ▇▇▇▇▇▇▇/WOW
Transactions (as defined below) in an aggregate amount of approximately
$17,800,000 were paid. The transactions described in this paragraph, together
with the ▇▇▇▇▇▇▇/WOW Merger Transactions are collectively referred to herein as
the "▇▇▇▇▇▇▇/WOW Transactions" and, together with the Southwest Transactions, as
the "Transactions".
On the Original Effective Date, the proceeds of (i) the ▇▇▇▇▇▇▇ Term
Loans were used solely to refinance an equivalent principal amount of Existing
▇▇▇▇▇▇▇ Indebtedness, (ii) the WOW Term Loans were used solely to refinance an
equivalent principal amount of Existing WOW Indebtedness and (iii) the remaining
Term Loans made on the Original Effective Date, together with proceeds from the
Alamosa Delaware Contribution, were used solely to (a) pay the cash portion of
the merger consideration of ▇▇▇▇▇▇▇ and WOW, (b) refinance the EDC Facility, (c)
refinance existing indebtedness of ▇▇▇▇▇▇▇ and WOW and (d) pay fees and expenses
related to the ▇▇▇▇▇▇▇/WOW Transactions. The proceeds of (i) the Southwest Term
Loans are to be used solely to refinance an equivalent principal amount of
Existing Southwest Indebtedness and (ii) the remaining Term Loans and Revolving
Loans made after the Restatement Effective Date are to be used for general
corporate purposes of the Borrower and the Subsidiaries, including funding
capital expenditures, subscriber acquisition and marketing costs, purchases of
spectrum and working capital needs.
5
The Lenders, the Co-Documentation Agent, the Documentation Agent,
Syndication Agent and the Administrative Agent are willing to amend and restate
the Original Credit Agreement in the form of this Agreement and the Lenders are
willing to extend the credit provided for herein to the Borrower on the terms
and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Citicorp USA, Inc., in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agents" means the Administrative Agent, the Syndication Agent,
the Documentation Agent and the Co-Documentation Agent.
"Aggregate Service Revenue" means for any period, total revenues less
revenues from equipment sales of Alamosa Delaware and its Restricted
Subsidiaries.
"Alamosa" means Alamosa PCS, Inc., a Delaware corporation and a wholly
owned subsidiary of the Borrower.
"Alamosa Delaware" means Alamosa (Delaware), Inc., a Delaware
corporation and a wholly owned subsidiary of APCS.
"Alamosa Delaware Indentures" means (i) the 12 7/8% Senior Discount
Notes Indenture and (ii) the 12 1/2% Senior Notes Indenture.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greatest of (a) the Citibank Base Rate in effect on such day, (b) the Base
CD Rate in effect on such day plus 1/2 of 1% and (c) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate
due to a change in the Citibank Base Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Citibank Base Rate, the Base CD Rate or the Federal Funds
Effective Rate, respectively.
"Annualized EBITDA" means, in respect of any fiscal quarter,
Consolidated EBITDA for the two consecutive fiscal quarters ending on the last
day of such fiscal quarter, multiplied by two.
"APCS" means Alamosa PCS Holdings, Inc., a Delaware corporation and a
wholly owned subsidiary of Superholdings. APCS is the surviving entity of the
merger of Alamosa PCS Holdings, Inc. with and into Southwest Holdings.
"Applicable Commitment Fee Rate" means, with respect to the commitment
fee payable pursuant to Section 2.11(a), a rate per annum equal to (x) 1.50% for
each day on which Usage is less than or equal to 33.33%, (y) 1.25% for each day
on which Usage is greater than 33.33% but less than or equal to 66.66% and (z)
1.00% for each day on which Usage is greater than 66.66%. For purposes of the
foregoing, "Usage" means, on any date, the percentage obtained by dividing (i)
the sum of the aggregate outstanding Term Loans and the aggregate Revolving
Exposure on such date by (ii) the sum of the aggregate outstanding Term Loans,
unutilized Term Commitments and Revolving Commitments on such date.
"Applicable Percentage" means, with respect to any Revolving Lender,
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
6
"Applicable Rate" means, for any day with respect to any ABR Loan or
Eurodollar Loan, the applicable rate per annum set forth below under the caption
"ABR Spread" or "Eurodollar Spread", as the case may be, based upon the Leverage
Ratio as of the most recent determination date; provided that until September
30, 2002 the "Applicable Rate" shall be the applicable rate per annum set forth
below in Category 1:
ABR Eurodollar
Leverage Ratio: Spread Spread
--------------- ------- --------
Category 1
----------
Initial Spread 3.00 4.00
Category 2
----------
Greater than or equal to
9.0:1.0 2.75 3.75
Category 3
----------
Greater than or equal to
8.0:1.0
and less than
9.0:1.0 2.50 3.50
Category 4
----------
Greater than or equal to
6.0:1.0
and less than
8.0:1.0 2.25 3.25
Category 5
----------
Greater than or equal to
5.0:1.0
and less than
6.0:1.0 2.00 3.00
Category 6
----------
Less than 5.0:1.0 1.75 2.75
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting
from a change in the Leverage Ratio shall be effective during the period
commencing on and including the date of delivery to the Administrative Agent of
such consolidated financial statements indicating such change and ending on the
date immediately preceding the effective date of the next such change; provided
that the Leverage Ratio shall be deemed to be in Category 1 at the option of the
Administrative Agent or at the request of the Required Lenders if (A) an Event
of Default has occurred and is continuing, during the period of time such Event
of Default is continuing, or (B) the Borrower fails to deliver the consolidated
financial statements required to be delivered by it pursuant to Section 5.01(a)
or (b), during the period from the expiration of the time for delivery thereof
until such consolidated financial statements are delivered.
"Assessment Rate" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Alamosa Holdings, LLC, a Delaware limited liability
company and a wholly owned subsidiary of Alamosa Delaware.
"Borrowing" means Loans of the same Class and Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
7
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" means, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of Alamosa Delaware
and the Restricted Subsidiaries that are (or would be) set forth in a
consolidated statement of cash flows of the Borrower for such period prepared in
accordance with GAAP and (b) Capital Lease Obligations incurred by Alamosa
Delaware and the Restricted Subsidiaries during such period.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase or subscribe for any
such warrants, rights or options.
"Change in Control" means (a) the acquisition of ownership
beneficially or of record, by any Person other than (i) Superholdings of any
Equity Interest in APCS, (ii) APCS of any Equity Interest in Alamosa Delaware or
(iii) Alamosa Delaware of any Equity Interest in the Borrower; (b) the
acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or group (within the meaning of the Securities Exchange Act of 1934
and the rules of the Securities and Exchange Commission thereunder as in effect
on the date hereof) other than Persons (or Affiliates thereof) owning capital
stock of Superholdings on the Effective Date, of Equity Interests representing
more than 35% of the aggregate ordinary voting power represented by the issued
and outstanding Equity Interests in Superholdings; or (c) occupation of a
majority of the seats (other than vacant seats) on the board of directors of
Superholdings by Persons who were neither (i) nominated by the board of
directors of Superholdings nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.14(b), by any lending office of such Lender
or by such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
8
"Citibank" means Citicorp USA, Inc., a New York banking
corporation.
"Citibank Base Rate" means the rate of interest publicly
announced by Citibank, N.A. in New York from time to time as its Citibank
Base Rate.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
or Term Loans and, when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Commitment or Term Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Co-Documentation Agent" has the meaning set forth in the
preamble of this Agreement.
"Collateral" means any and all "Collateral", as defined in any
applicable Security Document.
"Collateral and Guarantee Requirement" means the requirement
that:
(a) the Administrative Agent shall have received from each Loan Party
either (i) a counterpart of each of the Security Documents duly executed
and delivered on behalf of all Loan Parties thereto (ii) in the case of any
Person that becomes a Loan Party after the Restatement Effective Date, a
supplement to each Security Document, in the form specified therein, duly
executed and delivered on behalf of such Loan Party;
(b) all outstanding Equity Interests of the Borrower and each
Restricted Subsidiary owned by or on behalf of any Loan Party shall have
been pledged pursuant to the Pledge Agreement (except that the Loan Parties
shall not be required to pledge more than 65% of the outstanding voting
Equity Interests of any Foreign Subsidiary that is not a Loan Party) and
the Administrative Agent shall have received certificates or other
instruments representing all such Equity Interests, together with stock
powers or other instruments of transfer with respect thereto endorsed in
blank;
(c) all Indebtedness of Superholdings, APCS, Alamosa Delaware, the
Borrower and any subsidiary of any of the above that is owing to Alamosa
Delaware, the Borrower or any Subsidiary Loan Party shall have been pledged
pursuant to the Security Documents and, to the extent evidenced by a
promissory note, the Administrative Agent shall have received all such
promissory notes, together with instruments of transfer with respect
thereto endorsed in blank;
(d) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create the
Liens intended to be created by the Security Documents and perfect such
Liens to the extent required by, and with the priority required by, the
Security Documents, shall have been filed, registered or recorded or
delivered to the Administrative Agent for filing, registration or
recording;
(e) the Administrative Agent shall have received (i) counterparts of a
Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy or
policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid first
Lien on the Mortgaged Property described therein, free of any other Liens
except as expressly permitted by Section 6.02, together with such
endorsements, coinsurance and reinsurance as the Administrative Agent or
the Required Lenders may reasonably request, and (iii) such surveys,
abstracts, appraisals, legal opinions and other documents as the
Administrative Agent or the Required Lenders may reasonably request with
respect to any such Mortgage or Mortgaged Property; and
(f) each Loan Party shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and delivery
of all Security Documents to which it is a party, the performance of its
obligations thereunder and the granting by it of the Liens thereunder.
9
"Commitment" means a Revolving Commitment, Term Commitment, or any
combination thereof (as the context requires).
"Communications Act" means the Communications Act of 1934, and any
similar or successor Federal statute, and the rules and regulations and
published policies of the FCC thereunder, all as amended and as the same may be
in effect from time to time.
"Consent and Agreement" means the Consent and Agreement among Sprint
Spectrum L.P., Sprintcom, Inc., Sprint Communications Company, L.P., ▇▇▇
Communications PCS, L.P., ▇▇▇ PCS License, LLC, Wirelessco, L.P. and the
Administrative Agent, substantially in the form of Exhibit G.
"Consolidated Cash Interest Expense" means, for any period, the excess
of (a) without duplication, the sum of (i) the interest expense (including
imputed interest expense in respect of Capital Lease Obligations) of Alamosa
Delaware and the Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP, (ii) any interest accrued during
such period in respect of Indebtedness of Alamosa Delaware or any Restricted
Subsidiary that is required to be capitalized rather than included in
consolidated interest expense for such period in accordance with GAAP, plus
(iii) any cash payments made during such period in respect of obligations
referred to in clause (b)(y) below that were amortized or accrued in a previous
period, minus (b) without duplication, the sum of (x) to the extent included in
such consolidated interest expense for such period, non-cash amounts
attributable to amortization of financing costs paid in a previous period, plus
(y) to the extent included in such consolidated interest expense for such
period, non-cash amounts attributable to amortization of debt discounts or
accrued interest payable in kind for such period. For purposes of the foregoing,
cash interest expense shall be determined taking into account any net payments
made or received by Alamosa Delaware or any Restricted Subsidiary with respect
to interest rate Hedging Agreements.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated interest
expense for such period, (ii) consolidated income tax expense for such period,
(iii) all amounts attributable to depreciation and amortization for such period,
(iv) any extraordinary charges or non-cash charges for such period (provided,
that any cash payment made with respect to any such non-cash charge shall be
subtracted in computing Consolidated EBIDTA during the period in which such cash
payment is made) and (v) other charges to the extent solely attributable to SFAS
133, and minus (b) the sum of (i) interest income of Alamosa Delaware and the
Restricted Subsidiaries for such period and (ii) without duplication and to the
extent included in determining such Consolidated Net Income, any non-cash gains
or extraordinary gains for such period, all determined on a consolidated basis
in accordance with GAAP.
"Consolidated Fixed Charges" means, for any period, the sum of (a)
Consolidated Cash Interest Expense for such period, (b) the aggregate amount of
scheduled principal payments made during such period in respect of Long-Term
Indebtedness of Alamosa Delaware and the Restricted Subsidiaries (other than
payments made by Alamosa Delaware or any Restricted Subsidiary to Alamosa
Delaware or a Restricted Subsidiary), (c) Capital Expenditures for such period
(other than Capital Expenditures made with the Net Proceeds of Prepayment Events
referred to in clause (a) of the definition of Prepayment Event) and (d) the
aggregate amount of income Taxes paid in cash by Alamosa Delaware and the
Restricted Subsidiaries during such period.
10
"Consolidated Net Income" means, for any period, the net income or
loss of Alamosa Delaware and the Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP (adjusted to reflect,
without duplication, any charge, tax or expense incurred or accrued by
Superholdings or APCS during such period as though such charge, tax or expense
had been incurred by Alamosa Delaware, to the extent that Alamosa Delaware has
made any payment to or for the account of Superholdings or APCS in respect
thereof); provided that there shall be excluded (a) the income of any Person
(other than Alamosa Delaware) in which any other Person (other than Alamosa
Delaware or any Restricted Subsidiary or any director holding qualifying shares
in compliance with applicable law) owns an Equity Interest, except to the extent
of the amount of dividends or other distributions actually paid to Alamosa
Delaware or any of the Restricted Subsidiaries during such period, and (b) the
income or loss of any Person accrued prior to the date it becomes a Restricted
Subsidiary or is merged into or consolidated with Alamosa Delaware or any
Restricted Subsidiary or the date that such Person's assets are acquired by
Alamosa Delaware or any Restricted Subsidiary.
"Contractual Obligations" means as to any Person, any provision of any
security issued by such Person or any agreement, instrument or other undertaking
to which such Person is a party or to which it or any of its property is bound.
"Contributed Borrower Equity" means on any date, the sum of (a) the
aggregate amount of cash which shall have been received by the Borrower on or
prior to such date as common equity contributions, plus (b) the aggregate
principal amount of outstanding loans made by Alamosa Delaware or a Subsidiary
thereof to each of ▇▇▇▇▇▇▇ and WOW that have been contributed to the Borrower or
any of its subsidiaries on the Original Effective Date minus (c) the cumulative
aggregate amount of Restricted Payments that are Permitted Equity Proceeds Uses
paid or made by Alamosa Delaware or the Restricted Subsidiaries during the
period from the Original Effective Date through such date.
"Contributed Equity" means on any date, the aggregate amount of cash
which shall have been received by Alamosa Delaware on or prior to such date as
common equity contributions, minus the cumulative aggregate amount of Restricted
Payments that are Permitted Equity Proceeds Uses paid or made by Alamosa
Delaware or the Restricted Subsidiaries during the period from the Original
Effective Date through such date.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Covered Pops" means the aggregate number of Pops within each
geographic area for which a System owned by Alamosa Delaware or the Restricted
Subsidiaries that provides coverage of such geographic area has commenced
service.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"Documentation Agent" has the meaning set forth in the preamble
of this Agreement.
"dollars" or "$" refers to lawful United States of America.
11
"EDC Facility" means the second amended and restated credit agreement
dated June 23, 2000 (as amended, supplemented or otherwise modified from time to
time) by and among Alamosa, as borrower, Alamosa Delaware, Texas
Telecommunications LP, Alamosa Wisconsin Limited Partnership, Alamosa Delaware
GP, LLC, Alamosa Wisconsin GP, LLC, Alamosa Finance LLC, Alamosa Limited LLC, as
guarantors, Export Development Corporation, as administrative agent and the
lenders named therein.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of Superholdings, APCS, Alamosa Delaware, the
Borrower or any Restricted Subsidiary directly or indirectly resulting from or
based upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with Alamosa Delaware, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by Alamosa Delaware or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by Alamosa Delaware or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any
Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence
by Alamosa Delaware or any of its ERISA Affiliates of any liability with respect
to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or
(g) the receipt by Alamosa Delaware or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from Alamosa Delaware or any ERISA Affiliate
of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excess Cash Flow" means, for any fiscal year, the sum (without
duplication) of:
12
(a) the consolidated net income (or loss) of Alamosa Delaware and its
Restricted Subsidiaries for such fiscal year, adjusted to exclude any gains
or losses attributable to Prepayment Events; plus
(b) the excess, if any, of the Net Proceeds received during such
fiscal year by Alamosa Delaware and its consolidated Restricted
Subsidiaries in respect of any Prepayment Events over the aggregate
principal amount of Term Loans prepaid pursuant to Section 2.10(c) in
respect of such Net Proceeds; plus
(c) depreciation, amortization and other non-cash charges or losses
deducted in determining such consolidated net income (or loss) for such
fiscal year; plus
(d) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such fiscal year plus (ii) the net amount, if any, by
which the consolidated deferred revenues and other consolidated accrued
long-term liability accounts of Alamosa Delaware and its consolidated
Restricted Subsidiaries increased (other than as a result of purchase
accounting adjustments) during such fiscal year plus (iii) the net amount,
if any, by which the consolidated accrued long-term asset accounts of
Alamosa Delaware and the Restricted Subsidiaries decreased (other than as a
result of purchase accounting adjustments) during such fiscal year; minus
(e) the sum of (i) any non-cash gains included in determining such
consolidated net income (or loss) for such fiscal year plus (ii) the
amount, if any, by which Net Working Capital increased during such fiscal
year plus (iii) the net amount, if any, by which the consolidated deferred
revenues and other consolidated accrued long-term liability accounts of
Alamosa Delaware and its consolidated Restricted Subsidiaries decreased
during such fiscal year plus (iv) the net amount, if any, by which the
consolidated accrued long- term asset accounts of Alamosa Delaware and the
Restricted Subsidiaries increased during such fiscal year; minus
(f) the sum of (i) Capital Expenditures made in cash for such fiscal
year (except to the extent attributable to the incurrence of Capital Lease
Obligations or otherwise financed by incurring Long- Term Indebtedness)
plus (ii) cash consideration paid by Alamosa Delaware and the Restricted
Subsidiaries during such fiscal year to make acquisitions or other capital
investments (except to the extent financed by incurring Long-Term
Indebtedness); minus
(g) the aggregate principal amount of Long-Term Indebtedness repaid or
prepaid by Alamosa Delaware and the Restricted Subsidiaries during such
fiscal year, excluding (i) Indebtedness in respect of Revolving Loans
(except to the extent the Revolving Commitments are permanently reduced in
the amount of and at the time of any such payment other than pursuant to
Section 2.10(c) or (d)) and Letters of Credit, (ii) Term Loans prepaid
pursuant to Section 2.10(c) or (d), and (iii) repayments or prepayments of
Long-Term Indebtedness financed by incurring other Long-Term Indebtedness.
"Excluded Assets" means, at any time, the collective reference to all
assets of Alamosa Delaware or any Restricted Subsidiary then subject to a Lien
permitted by sub-Section 6.02(iii) through (v).
"Excluded Real Property Assets" means Real Property Assets which
constitute Excluded Assets.
"Excluded Real Property-Related Equipment" means Real
Property-Related Equipment which constitutes Excluded Assets.
"Excluded Taxes" means, with respect to the Administrative Agent, the
Documentation Agent, the Co- Documentation Agent, the Syndication Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.18(b)), any withholding tax that (i) is in effect and would
apply to amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to any withholding tax
pursuant to Section 2.16(a), or (ii) is attributable to such Foreign Lender's
failure to comply with Section 2.16(e).
13
"Existing ▇▇▇▇▇▇▇ Indebtedness" means indebtedness of ▇▇▇▇▇▇▇
existing on the Original Effective Date under the ▇▇▇▇▇▇▇ Credit Agreement
in an aggregate principal amount of $56,000,000.
"Existing Southwest Indebtedness" means indebtedness of Southwest
existing on the date hereof under the Southwest Credit Agreement in an aggregate
principal amount of $53,000,000.
"Existing WOW Indebtedness" means indebtedness of WOW existing on the
Original Effective Date under the WOW Credit Agreement in an aggregate principal
amount of $30,060,318.
"FCC" means the Federal Communications Commission, or any other
similar or successor agency of the Federal government administering the
Communications Act.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Covenants" means the covenants set forth in Section 6.12.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower or Alamosa Delaware,
as applicable.
"Financing Transactions" means the execution, delivery and performance
by each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans, the use of the proceeds thereof and the issuance of Letters
of Credit hereunder.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"Funded Debt" means, as of any date, the sum of all Indebtedness for
borrowed money of Alamosa Delaware and the Restricted Subsidiaries, determined
on a consolidated basis, which by its terms matures more than one year after
such date, and any such Indebtedness for borrowed money maturing within one year
from such date which is renewable or extendible at the option of the obligor to
a date more than one year from such date.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
14
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The
amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
is made or, if not stated or determinable, the maximum anticipated liability in
respect thereof (assuming such Person is required to perform thereunder).
"Guarantee Agreement" means the Amended and Restated Guarantee
Agreement with respect to the Obligations, substantially in the form of Exhibit
C, made by Superholdings, APCS, Alamosa Delaware and the Subsidiary Loan Parties
in favor of the Collateral Agent for the benefit of the Secured Parties.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate swap, cap or collar
agreement or similar arrangement dealing with interest rates or currency
exchange rates or commodity prices or the exchange of nominal interest
obligations, either generally or under specific contingencies or any arrangement
otherwise documented under an ISDA master agreement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g)
all Capital Lease Obligations of such Person, (h) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty and (i) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" means the Amended
and Restated Indemnity, Subrogation and Contribution Agreement, substantially in
the form of Exhibit D, among Superholdings, APCS, Alamosa Delaware, the Borrower
and the Subsidiary Loan Parties.
15
"Information Memorandum" means the Confidential Information Memorandum
dated January 2001 relating to the Borrower and the Transactions, as
supplemented by Exhibits A and B thereto, the revised sources and uses table
dated January 26, 2001, the revised capitalization tables dated January 26,
2001, the revised model dated January 26, 2001 the revised term sheet dated
January 30, 2001.
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing or Term Borrowing in accordance with Section
2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; provided, that (a) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (b) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall
be the effective date of the most recent conversion or continuation of such
Borrowing.
"Investment" means purchasing, holding or acquiring (including
pursuant to any merger with any Person that was not a Wholly Owned Restricted
Subsidiary prior to such merger) any Capital Stock, evidences of indebtedness or
other securities (including any option, warrant or other right to acquire any of
the foregoing) of, or making or permitting to exist any loans or advances (other
than commercially reasonable extensions of trade credit) to, guaranteeing any
obligations of, or making or permitting to exist any investment in, any other
Person, or purchasing or otherwise acquiring (in one transaction or a series of
transactions) any assets of any Person constituting a business unit. The amount,
as of any date of determination, of any Investment shall be the original cost of
such Investment (including any Indebtedness of a Person existing at the time
such Person becomes a Restricted Subsidiary in connection with any Investment
and any Indebtedness assumed in connection with any acquisition of assets), plus
the cost of all additions, as of such date, thereto and minus the amount, as of
such date, of any portion of such Investment repaid to the investor in cash or
property as a repayment of principal or a return of capital (including pursuant
to any sale or disposition of such Investment), as the case may be (except to
the extent such repaid amount has been included in Consolidated Net Income), but
without any other adjustments for increases or decreases in value, or write-
ups, write-downs or write-offs with respect to such Investment. In determining
the amount of any Investment or repayment involving a transfer of any property
other than cash, such property shall be valued at its fair market value at the
time of such transfer.
"Issuing Bank" means Citibank, in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.04(i). The Issuing Bank may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which
case the term "Issuing Bank" shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
16
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Certain Lenders reflected on Schedule 2.01 as
having no Term Commitments became Lenders on the Original Effective Date, or are
becoming Lenders on the Restatement Effective Date, by purchasing, pursuant to
an Assignment and Acceptance, Term Loans in the amounts indicated for such
Lenders on Schedule 2.01 which were initially made by other Lenders on the
Original Effective Date or are initially being made by other Lenders on the
Restatement Effective Date, as the case may be, and such Lenders are executing
this Agreement but shall not be deemed to have any Term Commitments hereunder.
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement.
"Leverage Ratio" means, on any date, the ratio of (a) Total
Indebtedness as of such date to (b) Annualized EBITDA of Alamosa Delaware and
the Restricted Subsidiaries in respect of the fiscal quarter ended on such date
(or, if such date is not the last day of a fiscal quarter, ended on the last day
of the fiscal quarter of Alamosa Delaware most recently ended prior to such
date).
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"License" means any license issued by the FCC that is used in
connection with the operation of a System by Alamosa Delaware or a Restricted
Subsidiary.
"License Subsidiary" means (a) Washington Oregon Wireless Licenses,
LLC, a Delaware limited liability company, and (b) Southwest PCS Licenses, LLC,
a Delaware limited liability company, and/or any other Wholly Owned Subsidiary
of the Borrower designated as a License Subsidiary by notice to the
Administrative Agent; provided, however, that (i) such Subsidiary has no
obligations or liabilities other than as permitted by Section 3.13, (ii) all the
Capital Stock of such Subsidiary is pledged to the Collateral Agent for the
benefit of the Lenders in accordance with the terms of the Pledge Agreement and
(iii) the Borrower and such Subsidiary have entered into a Special Purpose
Funding Agreement.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
17
"Loan Documents" means this Agreement and the Security Documents.
"Loan Parties" means Superholdings, APCS, Alamosa Delaware, the
Borrower and the Subsidiary Loan Parties.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Long-Term Indebtedness" means any Indebtedness that, in accordance
with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
Superholdings, APCS, Alamosa Delaware, the Borrower and the Restricted
Subsidiaries, taken as a whole, (b) the ability of the Loan Parties, taken as a
whole, to perform any of their material obligations under the Loan Documents or
(c) any material rights of or benefits available to the Lenders under any Loan
Document.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of Superholdings, APCS, Alamosa Delaware, the Borrower and
the Restricted Subsidiaries in an aggregate principal amount exceeding
$5,000,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of Superholdings, APCS, Alamosa Delaware, the
Borrower or any Restricted Subsidiary in respect of any Hedging Agreement at any
time shall be the maximum aggregate amount (giving effect to any netting
agreements) that Superholdings, APCS, Alamosa Delaware, the Borrower or such
Restricted Subsidiary would be required to pay if such Hedging Agreement were
terminated at such time.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Collateral Agent.
"Mortgaged Property" means each parcel of real property and
improvements thereto with respect to which a Mortgage is granted pursuant to the
Collateral and Guarantee Requirement under Section 4.01 or Section 5.12 or 5.13.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds, but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
reasonable fees (including any underwriting fees, discounts and commissions) and
out-of-pocket expenses paid by Alamosa Delaware, the Borrower and the Restricted
Subsidiaries to third parties (other than Affiliates) in connection with such
event, (ii) in the case of a sale, transfer or other disposition of an asset
(including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), the amount of all payments required to be
made by Alamosa Delaware, the Borrower and the Restricted Subsidiaries as a
result of such event to repay Indebtedness (other than Loans) secured by such
asset or otherwise subject to mandatory prepayment as a result of such event,
and (iii) the amount of all taxes paid (or reasonably estimated to be payable,
provided that such amounts withheld or estimated for tax payments shall, to the
extent not utilized for the payment of taxes, be deemed to be Net Proceeds) by
Alamosa Delaware, the Borrower and the Restricted Subsidiaries, and the amount
of any reserves established by Alamosa Delaware, the Borrower and the Restricted
Subsidiaries to fund contingent liabilities reasonably estimated to be payable
(provided that any reversal of any such reserves will be deemed to be Net
Proceeds received at the time and in the amount of such reversal), in each case
that are directly attributable to such event (as determined reasonably and in
good faith by the chief financial officer of the Borrower).
18
"Net Property, Plant and Equipment" means net property, plant and
equipment of Alamosa Delaware and the Restricted Subsidiaries as determined in
accordance with GAAP.
"Net Working Capital" means, at any date, (a) the consolidated current
assets of Alamosa Delaware and its Restricted Subsidiaries as of such date
(excluding cash and Permitted Investments) minus (b) the consolidated current
liabilities of Alamosa Delaware and its Restricted Subsidiaries as of such date
(excluding current liabilities in respect of Indebtedness). Net Working Capital
at any date may be a positive or negative number. Net Working Capital increases
when it becomes more positive or less negative and decreases when it becomes
less positive or more negative.
"Obligations" has the meaning assigned to such term in the
Guarantee Agreement.
"Oklahoma LLCs" means SWGP, L.L.C. and SWLP, L.L.C., each an
Oklahoma limited liability company and a wholly owned subsidiary of the
Borrower.
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Annex I of
the Security Agreement or any other form approved by the Collateral Agent.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes, assessments or other governmental
charges that are not delinquent or are being contested in compliance with
Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's, landlords',
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 90 days or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations and deposits securing liabilities to
insurance carriers or in connection with self insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and other
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of Alamosa Delaware or any Restricted
Subsidiary;
(g) restrictions on the transfer of assets contained in any License or
imposed by the Communications Act or comparable state legislation enacted
after the date hereof;
19
(h) leases or subleases granted to others not interfering in any
material respect with the business of Alamosa Delaware and the Restricted
Subsidiaries, taken as a whole, and any interest or title of a lessor under
any lease (other than a Capital Lease Obligation) not prohibited by this
Agreement;
(i) ground leases in respect of real property on which facilities
owned or leased by Alamosa Delaware or any Restricted Subsidiary are
located;
(j) the filing of financing statements regarding leases (other than a
Capital Lease Obligation) not prohibited by this Agreement, which financing
statements shall not have the effect of creating, evidencing or perfecting
any Lien on any property or asset of Alamosa Delaware or any of its
Restricted Subsidiaries but shall be, in effect, for informational purposes
only;
(k) with respect to each Mortgaged Property, the exceptions listed in
the title insurance policy relating to such Mortgaged Property; and
(l) minor defects in title that do not interfere with the ability to
conduct business in the ordinary course or to utilize properties for their
intended purposes;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Equity Proceeds Use" means the application of cash proceeds
of the equity contributions made by Alamosa Delaware to the Borrower on or prior
to the Restatement Effective Date to any of the following: (i) Investments
pursuant to Sections 6.04(d)(ii) and (l) and (ii) Restricted Payments pursuant
to Sections 6.08(a)(v) and (vi); provided, however, that the aggregate amount of
such Restricted Payments plus the aggregate amount of such Investments at any
time outstanding does not exceed $50,000,000.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, a
credit rating of A-1 or better or P-1 or better from S&P or from Moody's,
respectively;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above; and
20
(e) investments in money market funds substantially all of whose
assets consist of securities of the types described in clauses (a) through
(d) above.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which Alamosa
Delaware or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Pledge Agreement" means the Amended and Restated Pledge Agreement,
substantially in the form of Exhibit E, among Alamosa Delaware, the Borrower,
the Subsidiary Loan Parties and the Collateral Agent, for the benefit of the
Secured Parties.
"Pops" means, as of any date, with respect to any BTA, MTA, MSA or
RSA, as applicable, the population of such BTA, MTA, MSA, or RSA, as applicable,
as such number is most recently published in the "PCS Atlas and Data Book" by
▇▇▇▇ ▇▇▇▇▇ Associates, Inc.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of Alamosa
Delaware or any Restricted Subsidiary, other than (i) dispositions
described in clauses (a), (b) and (c) of Section 6.05 and (ii) other
dispositions resulting in aggregate Net Proceeds not exceeding $1,000,000
during any fiscal year of Alamosa Delaware; or
(b) any casualty or other insured damage to, or any taking under power
of eminent domain or by condemnation or similar proceeding of, any property
or asset of Alamosa Delaware or any Restricted Subsidiary, but only to the
extent that the Net Proceeds therefrom have not been applied to repair,
restore or replace such property or asset within 270 days after such event;
or
(c) the incurrence by Superholdings, APCS, Alamosa Delaware, the
Borrower or any Restricted Subsidiary of any Indebtedness, other than
Indebtedness permitted by Section 6.01.
"Pro Forma Debt Service" means, as of the last day of any fiscal
quarter, the sum of (a) projected Consolidated Cash Interest Expense for the
period of four fiscal quarters immediately following such fiscal quarter and (b)
the aggregate amount of scheduled principal payments to be made during such
period of four fiscal quarters in respect of Long-Term Indebtedness of Alamosa
Delaware and the Restricted Subsidiaries outstanding on such date. For purposes
of the foregoing, (i) interest with respect to floating rate Indebtedness shall
be deemed to accrue during such period of four fiscal quarters at the same rates
in effect on the determination date, giving effect to interest rate Hedging
Agreements in effect on the determination date to the extent applicable to such
period and (ii) except for then-scheduled amortization payments, all
Indebtedness outstanding on the determination date shall be assumed to remain
outstanding during such period of four fiscal quarters.
21
"Public Information Memorandum" means the Information Memorandum dated
January 2001 relating to the Borrower and the Transactions and containing only
publicly available information.
"Real Property Assets" means all interests (including leasehold
interests) of Alamosa Delaware and its Restricted Subsidiaries in real property.
"Real Property Subsidiary" means each of (a) ▇▇▇▇▇▇▇ Wireless
Properties, LLC, (b) Washington Oregon Wireless Properties, LLC, (c) Alamosa
(Wisconsin) Properties, LLC, (d) Alamosa Properties, LP and (e) Southwest PCS
Properties, LLC and/or any Wholly Owned Subsidiary of the Borrower designated by
the Borrower as a Real Property Subsidiary by notice to the Administrative
Agent; provided, however, that (i) such Subsidiary has no obligations or
liabilities other than as permitted by Section 3.13, (ii) the stock of such
Subsidiary is pledged to the Collateral Agent for the benefit of the Lenders in
accordance with the terms of the Pledge Agreement and (iii) the Borrower and
such Subsidiary have entered into a Special Purpose Subsidiary Funding
Agreement.
"Real Property-Related Equipment" means all equipment (as defined in
the UCC) of Alamosa Delaware or any Restricted Subsidiary that constitutes a
fixture (as defined in the UCC) on Real Property Assets.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing more than 50% of the
sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws, the partnership agreement or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination, judgment, writ, injunction, decree or order of an arbitrator or a
court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.
"Restatement Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interests in
Superholdings, APCS, Alamosa Delaware, the Borrower or any Restricted
Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancelation or termination of any Equity
Interests in Superholdings, APCS, Alamosa Delaware, the Borrower or any
Restricted Subsidiary or any option, warrant or other right to acquire any such
Equity Interests in Superholdings, APCS, Alamosa Delaware, the Borrower or any
Restricted Subsidiary.
"Restricted Subsidiary" means any Subsidiary that is not an
Unrestricted Subsidiary.
"Revolving Availability Period" means the period from and including
the Restatement Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
22
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.07 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Revolving
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Revolving Commitment, as
applicable. The initial aggregate amount of the Lenders' Revolving Commitments
is $40,000,000.
"Revolving Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
its LC Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to clause (b) of
Section 2.01.
"Revolving Maturity Date" means February 14, 2008.
"▇▇▇▇▇▇▇" means ▇▇▇▇▇▇▇ Wireless Communications L.L.C., a Missouri
limited liability company and a wholly owned subsidiary of the Borrower.
"▇▇▇▇▇▇▇ Credit Agreement" means the Credit Agreement, dated as of
September 8, 1999 (as amended, supplemented or otherwise modified from time to
time), among ▇▇▇▇▇▇▇, the lenders party thereto, State Street Bank and Trust
Company, as Collateral Agent, and Lucent Technologies Inc., as Administrative
Agent.
"▇▇▇▇▇▇▇ Term Loans" means $20,000,000 principal amount of Term Loans
made on the Original Effective Date the proceeds of which (together with the
proceeds of other Term Loans) were utilized to repay Existing ▇▇▇▇▇▇▇
Indebtedness under the ▇▇▇▇▇▇▇ Credit Agreement.
"S&P" means Standard & Poor's.
"Secured Parties" has the meaning assigned to such term in the
Security Agreement.
"Secured Real Property Assets" means all Real Property Assets
(including Mortgaged Properties) in which the Administrative Agent, for the
benefit of the Secured Parties, has a first priority perfected Mortgage or other
first priority perfected security interest pursuant to the Security Documents.
"Secured Real Property-Related Equipment" means Real Property-Related
Equipment in which the Administrative Agent, for the benefit of the Secured
Parties, has a first priority perfected security interest pursuant to the
Security Documents.
"Security Agreement" means the Amended and Restated Security
Agreement, substantially in the form of Exhibit F, among Alamosa Delaware, the
Borrower, the Subsidiary Loan Parties and the Collateral Agent, for the benefit
of the Secured Parties.
"Security Documents" means the Guarantee Agreement, the Indemnity,
Subrogation and Contribution Agreement, the Pledge Agreement and the Security
Agreement, the Mortgages and each other security agreement or other instrument
or document executed and delivered pursuant to Section 5.12 or 5.13 to secure
any of the Obligations.
23
"Senior Borrower Debt" means, on any date, the aggregate principal
amount of Indebtedness of the Borrower and its Restricted Subsidiaries, other
than unsecured Indebtedness subordinated to the obligations of the Borrower and
its Restricted Subsidiaries under the Loan Documents in a manner satisfactory to
the Required Lenders, that would be reflected on a consolidated balance sheet of
the Borrower and its Restricted Subsidiaries prepared as of such date in
accordance with GAAP; provided that any such Indebtedness attributable solely to
the application of SFAS 133 shall not be included as Senior Borrower Debt.
"Senior Debt" means, on any date, Total Indebtedness on such date less
(without duplication) the outstanding amount on such date of any unsecured
Indebtedness of Alamosa Delaware and the Restricted Subsidiaries that is
subordinated to the obligations of Alamosa Delaware and the Restricted
Subsidiaries under the Loan Documents in a manner satisfactory to the Required
Lenders.
"Senior Leverage Ratio" means, on any date, the ratio of (a) Senior
Borrower Debt as of such date to (b) Annualized EBITDA in respect of the fiscal
quarter ended on such date (or, if such date is not the last day of a fiscal
quarter, ended on the last day of the fiscal quarter of Alamosa Delaware most
recently ended prior to such date).
"Service Regions" means (i) the BTAs, MSAs and RSAs listed on Schedule
3.14 (excluding any areas in which Alamosa Delaware and its Restricted
Subsidiaries have ceased to provide service with the consent of the Required
Lenders) and (ii) any other geographic areas with respect to which Alamosa
Delaware or its Restricted Subsidiaries acquire Licenses (or rights to exploit
Licenses substantially equivalent to the rights granted in the Sprint
Agreements) after the date hereof in accordance with the terms of this
Agreement.
"Southwest" means Southwest PCS, L.P., an Oklahoma limited partnership
and a wholly owned subsidiary of the Oklahoma LLCs.
"Southwest Credit Agreement" mean the Amended and Restated Credit
Agreement dated as of April 30, 1999, as amended and restated as of September
22, 2000 (as amended, supplemented or otherwise modified from time to time),
among Southwest, the banks party thereto and BNP Paribas, as Agent.
"Southwest Term Loans" means $53,000,000 principal amount of Term
Loans made on the Restatement Effective Date the proceeds of which were utilized
to repay Existing Southwest Indebtedness under the Southwest Credit Agreement.
"Special Purpose Subsidiary" means each License Subsidiary and
each Real Property Subsidiary.
"Special Purpose Subsidiary Funding Agreement" means an agreement
between the Borrower and each Special Purpose Subsidiary whereby (i) such
Special Purpose Subsidiary agrees to provide to the Borrower and its operating
Subsidiaries the benefit of the use of such Special Purpose Subsidiary's assets,
(b) the Borrower and its operating Subsidiaries agree to pay to such Special
Purpose Subsidiary an amount equal to all liabilities of such Special Purpose
Subsidiary less any amounts contributed by the Borrower or any operating
Subsidiary to the equity of such Special Purpose Subsidiary for the purpose of
paying such liabilities, (c) the Borrower and its operating Subsidiaries agree
to cause all Contractual Obligations of such Special Purpose Subsidiary to be
performed and all Requirements of Law of such Special Purpose Subsidiary to be
complied with and (d) the Borrower and such Special Purpose Subsidiary agree,
for the benefit of the Administrative Agent and the Secured Parties, to the
assignment by each of its rights thereunder to the Administrative Agent for the
benefit of the Secured Parties.
"Sprint Agreements" means the Management Agreements, the Sprint PCS
Services Agreements, the Sprint Spectrum Trademark and Service ▇▇▇▇ License
Agreements and the Sprint Trademark and Service ▇▇▇▇ License Agreements entered
into by (i) Texas Telecommunications, LP as of December 23, 1999, (ii) Alamosa
Wisconsin Limited Partnership as of December 6, 1999, (iii) ▇▇▇▇▇▇▇ Wireless
Communications, L.L.C. as of June 8, 1998, (iv) Washington Oregon Wireless LLC
as of January 25, 1999 and (v) Southwest PCS, L.P. as of July 10, 1998.
24
"Sprint PCS" means any one or more of the parties, other than the
Borrower or its subsidiaries, who are signatories to the Sprint Agreements,
including, without limitation, the following: Sprint Spectrum L.P.,
Sprintcom, Inc., Sprint Communications Company, L.P., ▇▇▇ Communications
PCS, L.P., ▇▇▇ PCS License, LLC and Wirelessco, L.P.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to three months and
(b) with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subscribers" means, as of any date, all customers then receiving
Wireless Services from Alamosa Delaware or any of its Restricted Subsidiaries,
none of the subscriber payments (other than those disputed in good faith by such
customer) of which are, as of such date, past due for such period as Sprint PCS
may have established for terminating such customer's service.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of Alamosa Delaware. For purposes of
the representations and warranties made herein on (i) the Original Effective
Date, the term "Subsidiary" includes each of ▇▇▇▇▇▇▇ and WOW and their
respective subsidiaries and (ii) the Restatement Effective Date, the term
"Subsidiary" includes each of the Southwest Entities and their respective
subsidiaries.
"Subsidiary Loan Party" means any wholly owned Restricted Subsidiary
that is not a Foreign Subsidiary.
"Superholdings" means Alamosa Holdings, Inc., a Delaware
corporation.
"Syndication Agent" has the meaning set forth in the preamble of
this Agreement.
"System" means, as to any Person, assets consisting of a radio
communications system authorized under the rules of the FCC for wireless
communications services (including any owned license and the network, marketing,
distribution, sales, customer interface and operating functions relating to the
provision of such services) owned or leased and operated by such Person.
25
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Availability Period" means the period from and including the
Restatement Effective Date to but excluding the earlier of (a) the date the Term
Commitments are terminated and (b) the Term Commitment Termination Date.
"Term Commitment" means, with respect to each Lender, the commitment,
if any, of such Lender to make a Term Loan hereunder, expressed as an amount
representing the maximum principal amount of the Term Loan to be made by such
Lender hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Term Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate amount of the Lenders' Term
Commitments is $293,000,000.
"Term Commitment Termination Date" means the date that is twelve
months after the Original Effective Date.
"Term Lender" means a Lender with a Term Commitment or an outstanding
Term Loan.
"Term Loan" means a loan made pursuant to clause (a) of Section 2.01.
"Term Maturity Date" means February 14, 2008.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York
received at approximately 10:00 a.m., New York time, on such day (or, if such
day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"Total Borrower Capital" means at any date, the sum of (a) the sum on
such date of all Indebtedness for borrowed money of the Borrower and its
Restricted Subsidiaries, determined on a consolidated basis, which by its terms
matures more than one year after such date, and any such Indebtedness for
borrowed money maturing within one year from such date which is renewable or
extendible at the option of the obligor to a date more than one year from such
date, that would, in each case, be reflected on a consolidated balance sheet of
the Borrower and its Restricted Subsidiaries prepared as of such date in
accordance with GAAP, plus (b) the aggregate amount on such date of Contributed
Borrower Equity.
"Total Capital" means at any date, the sum of (a) Funded Debt on such
date plus (b) Contributed Equity on such date.
"Total Indebtedness" means, as of any date, the aggregate principal
amount of Indebtedness of Alamosa Delaware and the Restricted Subsidiaries
outstanding as of such date, in the amount that would be reflected on a
consolidated balance sheet of Alamosa Delaware and the Restricted Subsidiaries
prepared as of such date in accordance with GAAP; provided that any such
Indebtedness attributable solely to the application of SFAS 133 shall not be
included in Total Indebtedness.
"12 1/2% Senior Notes" means the 12 1/2% Senior Notes due 2011 of
Alamosa Delaware issued under the 12 1/2% Senior Notes Indenture in an aggregate
principal amount equal to $250,000,000.
26
"12 1/2% Senior Notes Indenture" means the Indenture dated as of
January 31, 2001, between Alamosa Delaware, the subsidiary guarantors party
thereto and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee.
"12 7/8% Senior Discount Notes" means the 12 7/8% Senior Discount
Notes due 2010 of Alamosa Delaware issued under the 12 7/8% Senior Discount
Notes Indenture in an aggregate principal amount equal to $350,000,000.
"12 7/8% Senior Discount Notes Indenture" means the Indenture dated as
of February 8, 2000, between Alamosa Delaware and Norwest Bank Minnesota, N.A.
as trustee.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"UCC" means the Uniform Commercial Code of the State of New York.
"Unrestricted Subsidiary" means any Subsidiary of Alamosa Delaware
that has been designated as an Unrestricted Subsidiary by Alamosa Delaware
pursuant to and in compliance with Section 6.14. No Unrestricted Subsidiary may
own any Capital Stock of a Restricted Subsidiary.
"Wholly Owned Subsidiary" of any Person shall mean a subsidiary of
such Person of which Securities (except for directors' qualifying shares) or
other ownership interests representing 100% of the equity or 100% of the
ordinary voting power or 100% of the general partnership interests are, at the
time any determination is being made, owned, controlled or held by such Person
or one or more wholly owned subsidiaries of such Person or by such Person and
one or more wholly owned subsidiaries of such Person.
"Wireless Services" means broadband personal communications services
or cellular services provided in one or more Systems.
"Wireless Telecommunications Business" means (a) the ownership,
design, construction, development, acquisition, installation or management of
one or more Systems to provide Wireless Services as part of an affiliation
program with Sprint PCS, (b) the delivery or distribution of Wireless Services
as part of an affiliation program with Sprint PCS or (c) any business or
activity reasonably related to the activities described in clauses (a) or (b) of
this definition, including, without limitation, the acquisition, holding or
exploitation of any license relating to the activities described in clauses (a)
or (b) of this definition.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"WOW" means Washington Oregon Wireless, LLC, an Oregon limited
liability company and a wholly owned subsidiary of the Borrower.
"WOW Credit Agreement" means the Credit Agreement dated as of April
12, 2000 (as amended, supplemented or otherwise modified from time to time),
among WOW, CoBank, ACB, as Administrative Agent and the lenders party thereto.
"WOW Term Loans" means $10,000,000 principal amount of Term Loans made
on the Original Effective Date the proceeds of which (together with the proceeds
of other Term Loans) were utilized to repay Existing WOW Indebtedness under the
WOW Credit Agreement.
27
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
28
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees (a) to continue as Term Loans hereunder,
including as ▇▇▇▇▇▇▇ Term Loans and WOW Term Loans hereunder, the aggregate
principal amount of "Term Loans", including "▇▇▇▇▇▇▇ Term Loans" and "WOW Term
Loans", under and as defined in the Original Credit Agreement that are
outstanding on the Restatement Effective Date (such Lender's "Outstanding
Loans"), (b) to make additional Term Loans, including Southwest Term Loans, to
the Borrower from time to time during the Term Availability Period in a
principal amount not exceeding the excess of such Lender's Term Commitment, if
any, over the amount of such Lender's Outstanding Loans and (c) to make
Revolving Loans to the Borrower from time to time during the Revolving
Availability Period in an aggregate principal amount that will not result in
such Lender's Revolving Exposure exceeding such Lender's Revolving Commitment;
provided, no Revolving Loans shall be made until all Term Commitments have been
borrowed; provided further, that, on the Restatement Effective Date, the
Borrower must borrow a minimum aggregate principal amount of $53,000,000 of Term
Loans. Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
Amounts repaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as
part of a Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective unutilized Commitments of
the applicable Class. The failure of any Lender to make any Loan required to be
made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000; provided that an
ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Revolving Commitments or that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.04(e). Borrowings of more than one Type and Class may be outstanding at the
same time; provided that there shall not at any time be more than a total of
eight Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date, or Term Maturity Date, as applicable.
29
SECTION 2.03. Requests for Borrowings. To request a Revolving
Borrowing or Term Borrowing, the Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 11:00 a.m., New York time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York time, one Business Day before the date of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.04(e) may be
given not later than 10:00 a.m., New York time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing or a Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest Period
to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.05.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of
Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Revolving Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
Such terms and conditions of any such application shall not, in any event,
contain any operating covenants or restrictions, provide for any collateral not
provided under the Loan Documents or provide for the imposition of fees (other
than customary charges).
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Borrower
also shall submit a letter of credit application on the Issuing Bank's standard
form in connection with any request for a Letter of Credit. A Letter of Credit
shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed $10,000,000
and (ii) the total Revolving Exposures shall not exceed the total Revolving
Commitments.
30
(c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York time, on the date that such LC
Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date,
then not later than 12:00 noon, New York time, on (i) the Business Day that the
Borrower receives such notice, if such notice is received prior to 10:00 a.m.,
New York time, on the day of receipt, or (ii) the Business Day immediately
following the day that the Borrower receives such notice, if such notice is not
received prior to such time on the day of receipt; provided that the Borrower
may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 that such payment be financed with an ABR Revolving
Borrowing in an equivalent amount and, to the extent so financed, the Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing. If the Borrower fails to make such payment
when due, the Administrative Agent shall notify each Revolving Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender's Applicable Percentage thereof. Promptly following
receipt of such notice, each Revolving Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Borrower, in
the same manner as provided in Section 2.05 with respect to Loans made by such
Lender (and Section 2.05 shall apply, mutatis mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the Issuing Bank the amounts so received by it from the
Revolving Lenders. Promptly following receipt by the Administrative Agent of any
payment from the Borrower pursuant to this paragraph, the Administrative Agent
shall distribute such payment to the Issuing Bank or, to the extent that
Revolving Lenders have made payments pursuant to this paragraph to reimburse the
Issuing Bank, then to such Lenders and the Issuing Bank as their interests may
appear. Any payment made by a Revolving Lender pursuant to this paragraph to
reimburse the Issuing Bank for any LC Disbursement (other than the funding of
ABR Revolving Loans as contemplated above) shall not constitute a Loan and shall
not relieve the Borrower of its obligation to reimburse such LC Disbursement.
31
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.12(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
32
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced
at any time by written agreement among the Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.11(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing more than
50% of the total LC Exposure) demanding the deposit of cash collateral pursuant
to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that the obligation
to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (h) or (i) of Article VII. Each such deposit shall
be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrower's
risk and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the Issuing
Bank for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the maturity
of the Loans has been accelerated (but subject to the consent of Revolving
Lenders with LC Exposure representing more than 50% of the total LC Exposure),
be applied to satisfy other obligations of the Borrower under this Agreement. If
the Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived. If the Borrower is
required to provide an amount of cash collateral hereunder pursuant to Section
2.10(b), such amount (to the extent not applied as aforesaid) shall be returned
to the Borrower as and to the extent that, after giving effect to such return,
the Borrower would remain in compliance with Section 2.10(b) and no Event of
Default shall have occurred and be continuing.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request;
provided that ABR Revolving Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.04(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
33
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Revolving Borrowing and
Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
34
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a) Unless
previously terminated, (i) the Term Commitments shall terminate at 5:00 p.m.,
New York time, on the Term Commitment Termination Date and (ii) the Revolving
Commitments shall terminate on the Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class; provided that (i) each reduction of the
Commitments of any Class shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.10,
the sum of the Revolving Exposures would exceed the total Revolving Commitments.
(c) If any prepayment of Term Borrowings is required pursuant to
Section 2.10 but cannot be made because there are no Term Borrowings
outstanding, or because the amount of the required prepayment exceeds the
outstanding amount of Term Borrowings, then, on the date that such prepayment is
required, the Revolving Commitments shall be reduced by an aggregate amount
equal to the amount of the required prepayment, or the excess of such amount
over the outstanding amount of Term Borrowings, as the case may be.
(d) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section, or
any required reduction of the Revolving Commitments under paragraph (c) of this
Section, at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments of
any Class shall be permanent. Each reduction of the Commitments of any Class
shall be made ratably among the Lenders in accordance with their respective
Commitments of such Class.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
of such Lender on the Revolving Maturity Date and (ii) to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each
Term Loan of such Lender as provided in Section 2.09.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof;
provided that so long as any ▇▇▇▇▇▇▇ Term Loans, WOW Term Loans or Southwest
Term Loans remain outstanding, the Administrative Agent shall maintain accounts
in which it will separately reflect in respect of the ▇▇▇▇▇▇▇ Term Loans, the
WOW Term Loans and the Southwest Term Loans from time to time outstanding the
information set forth in clauses (i), (ii) and (iii) above.
35
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) It is the intention of the parties hereto that no promissory notes
be issued to evidence Loans hereunder; provided, however, that any Lender may
request that Loans of any Class made by it be evidenced by a promissory note. In
such event, the Borrower shall prepare, execute and deliver to such Lender four
promissory notes, reflecting such Lender's ▇▇▇▇▇▇▇ Term Loans, WOW Term Loans,
Southwest Term Loans and Term Loans other than ▇▇▇▇▇▇▇ Term Loans, WOW Term
Loans and Southwest Term Loans, in each payable to the order of such Lender (or,
if requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
each such promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 9.04) be represented by one or more
promissory notes in such form payable to the order of the payee named therein
(or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.09. Automatic Commitment Reductions; Amortization of Term
Loans. (a) The aggregate amount of the Lenders' Revolving Commitments shall
automatically and permanently reduce in 15 consecutive quarterly reductions
commencing on May 14, 2004 and a sixteenth and final reduction on the Revolving
Maturity Date, in each case in the amount set forth opposite such reduction date
below:
May 14, 2004.................................................. $1,500,000
August 14, 2004............................................... $1,500,000
November 14, 2004............................................. $1,500,000
February 14, 2005............................................. $1,500,000
May 14, 2005.................................................. $2,500,000
August 14, 2005............................................... $2,500,000
November 14, 2005............................................. $2,500,000
February 14, 2006............................................. $2,500,000
May 14, 2006.................................................. $2,500,000
August 14, 2006............................................... $2,500,000
November 14, 2006............................................. $2,500,000
February 14, 2007............................................. $2,500,000
May 14, 2007.................................................. $3,500,000
August 14, 2007............................................... $3,500,000
November 14, 2007............................................. $3,500,000
Revolving Maturity Date....................................... $3,500,000
Any voluntary reduction of the Revolving Commitments shall be applied to reduce
the subsequent scheduled reductions of the Revolving Commitments to be made
pursuant to this Section in inverse order of maturity.
(b) If on the six month anniversary of the Original Effective Date the
aggregate unused Term Commitments exceed $40,000,000, the aggregate Term
Commitments will be automatically reduced on such date by the amount of such
excess. Any remaining unused Term Commitments shall automatically expire on the
Term Commitment Termination Date.
36
(c) Subject to adjustment pursuant to paragraph (e) of this Section,
the Borrower shall repay Term Borrowings outstanding on the Term Commitment
Termination Date in 15 consecutive quarterly installments of principal, the
first of which will be due and payable on May 14, 2004, and a sixteenth and
final repayment on the Term Maturity Date, in each case in the amount (expressed
as a percentage of the aggregate amount of Term Loans outstanding on the Term
Commitment Termination Date) set forth opposite each quarterly installment date
below:
Date Amount
May 14, 2004.................................... 3.75%
August 14, 2004................................. 3.75%
November 14, 2004............................... 3.75%
February 14, 2005............................... 3.75%
May 14, 2005.................................... 6.25%
August 14, 2005................................. 6.25%
November 14, 2005............................... 6.25%
February 14, 2006............................... 6.25%
May 14, 2006.................................... 6.25%
August 14, 2006................................. 6.25%
November 14, 2006............................... 6.25%
February 14, 2007............................... 6.25%
May 14, 2007.................................... 8.75%
August 14, 2007................................. 8.75%
November 14, 2007............................... 8.75%
Term Maturity Date.............................. 8.75%
Any repayment of Term Borrowings pursuant to this paragraph shall be applied
ratably to reduce any outstanding ▇▇▇▇▇▇▇ Term Loans, WOW Term Loans and
Southwest Term Loans prior to being applied to other Term Loans.
(d) To the extent not previously paid, all Term Loans shall be due and
payable on the Term Maturity Date.
(e) Any prepayment of a Term Borrowing shall be applied to reduce the
subsequent scheduled repayments of the Term Borrowings to be made pursuant to
this Section ratably, in the case of any mandatory prepayment, and in inverse
order of maturity, in the case of any optional prepayment; provided that any
such prepayment shall be applied ratably to reduce all the subsequent scheduled
repayments of any outstanding ▇▇▇▇▇▇▇ Term Loans, WOW Term Loans and Southwest
Term Loans prior to being applied to other Term Loans; and provided further that
upon an Event of Default, proceeds of Collateral shall be applied in accordance
with the provisions of the Security Agreement. If no Term Borrowings are
outstanding, any mandatory prepayment required hereunder shall be applied to
permanently reduce the Lenders' Revolving Commitments.
(f) Prior to any repayment of any Term Borrowings, the Borrower shall
select the Borrowing or Borrowings to be repaid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection not
later than 11:00 a.m., New York time, three Business Days before the scheduled
date of such repayment. Each repayment of a Borrowing shall be applied ratably
to the Loans included in the repaid Borrowing; provided that any such repayment
of a Term Borrowing shall be applied ratably to any outstanding ▇▇▇▇▇▇▇ Term
Loans, WOW Term Loans and Southwest Term Loans prior to being applied to other
Term Loans. Repayments of Term Borrowings shall be accompanied by accrued
interest on the amount repaid.
SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in
whole or in part, subject to the requirements of this Section.
37
(b) In the event and on such occasion that the sum of the Revolving
Exposures exceeds the total Revolving Commitments, the Borrower shall prepay
Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Administrative Agent pursuant to Section
2.04(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of Alamosa Delaware, the Borrower or any Restricted
Subsidiary in respect of any Prepayment Event, the Borrower shall immediately
after such Net Proceeds are received, prepay Term Borrowings in an aggregate
amount equal to such Net Proceeds; provided that, in the case of any event
described in clause (a) of the definition of the term Prepayment Event, if the
Borrower shall deliver to the Administrative Agent a certificate of a Financial
Officer to the effect that the Borrower and the Subsidiaries intend to apply the
Net Proceeds from such event (or a portion thereof specified in such
certificate), within 270 days after receipt of such Net Proceeds, to acquire
real property, equipment or other tangible assets to be used in the business of
the Borrower and the Subsidiaries, and certifying that no Default has occurred
and is continuing, then no prepayment shall be required pursuant to this
paragraph in respect of the Net Proceeds in respect of such event (or the
portion of such Net Proceeds specified in such certificate, if applicable)
except to the extent of any such Net Proceeds therefrom that have not been so
applied by the end of such 270-day period, at which time a prepayment shall be
required in an amount equal to such Net Proceeds that have not been so applied.
(d) Following the end of each fiscal year of the Borrower, commencing
with the fiscal year ending December 31, 2003, the Borrower shall prepay Term
Borrowings in an aggregate amount equal to 50% of Excess Cash Flow for such
fiscal year. Each prepayment pursuant to this paragraph shall be made on or
before the date on which financial statements are delivered pursuant to Section
5.01 with respect to the fiscal year for which Excess Cash Flow is being
calculated (and in any event within 90 days after the end of such fiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (f) of this Section.
(f) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York time,
three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York time, one
Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment;
provided that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as contemplated
by Section 2.07, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.07. Promptly following
receipt of any such notice, the Administrative Agent shall advise the Lenders of
the contents thereof. Each partial prepayment of any Borrowing shall be in an
amount that would be permitted in the case of an advance of a Borrowing of the
same Type as provided in Section 2.02, except as necessary to apply fully the
required amount of a mandatory prepayment. Each prepayment of a Borrowing shall
be applied ratably to the Loans included in the prepaid Borrowing; provided that
any such prepayment of a Term Borrowing shall be applied ratably to any
outstanding ▇▇▇▇▇▇▇ Term Loans, WOW Term Loans and Southwest Term Loans prior to
being applied to other Term Loans. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.12.
38
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Commitment Fee Rate on the average daily unused
amount of each Commitment of such Lender during the period from and including
the Original Effective Date to but excluding the date on which such Commitment
terminates. Accrued commitment fees shall be payable in arrears on the last day
of March, June, September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after the
Original Effective Date. All commitment fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of computing
commitment fees with respect to Revolving Commitments, a Revolving Commitment of
a Lender shall be deemed to be used to the extent of the outstanding Revolving
Loans and LC Exposure of such Lender.
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as interest on Eurodollar Revolving Loans on the daily amount of such
Lender's LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Original Effective
Date to but excluding the later of the date on which such Lender's Revolving
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue at the
rate or rates per annum separately agreed upon between the Borrower and the
Issuing Bank on the average daily amount of the LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Original Effective Date to but excluding the later of the
date of termination of the Revolving Commitments and the date on which there
ceases to be any LC Exposure, as well as the Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting fees
accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following such
last day, commencing on the first such date to occur after the Original
Effective Date; provided that all such fees shall be payable on the date on
which the Revolving Commitments terminate and any such fees accruing after the
date on which the Revolving Commitments terminate shall be payable on demand.
Any other fees payable to the Issuing Bank pursuant to this paragraph shall be
payable within 10 days after demand. All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate plus the
Applicable Rate.
39
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Revolving Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
40
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the Issuing Bank's capital or on the capital
of such Lender's or the Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or the Issuing Bank's policies and the
policies of such Lender's or the Issuing Bank's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
or the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
41
SECTION 2.15. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.10(f) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.18, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if the Borrower shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent, Lender or Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder or under
any other Loan Document (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
42
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent; provided, however, that in no case
shall the Borrower be required to deliver documentation not normally issued by
such Governmental Authority.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate, provided that such Foreign Lender
has received written notice from the Borrower advising it of the availability of
such exemption or reduction and supplying all applicable documentation.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.14,
2.15 or 2.16, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 1:00 p.m., New York time), on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at Two Penns Way, New
Castle, Delaware, except payments to be made directly to the Issuing Bank as
expressly provided herein and except that payments pursuant to Sections 2.14,
2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons specified
therein. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment under any Loan Document shall be due
on a day that is not a Business Day, the date for payment shall be extended to
the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
43
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements resulting in such Lender receiving payment of a greater proportion
of the aggregate amount of its Revolving Loans, Term Loans and participations in
LC Disbursements and accrued interest thereon than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans, Term
Loans and participations in LC Disbursements of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Term Loans and
participations in LC Disbursements; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(d) or (e), 2.05(b), 2.17(d) or 9.03(c), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
44
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future, (ii) will not violate any law, rule or regulation and (iii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, the Issuing Bank), which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans and participations
in LC Disbursements, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.14 or payments required
to be made pursuant to Section 2.16, such assignment will result in a material
reduction in such compensation or payments. A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
45
ARTICLE III
Representations and Warranties
------------------------------
Each of Superholdings, Alamosa Delaware and the Borrower represents
and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of Superholdings, APCS,
Alamosa Delaware, the Borrower and the Restricted Subsidiaries is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions to be
entered into by each Loan Party are within such Loan Party's corporate powers
and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by each
of Superholdings, Alamosa Delaware and the Borrower and constitutes, and each
other Loan Document to which any Loan Party is to be a party, when executed and
delivered by such Loan Party, will constitute, a legal, valid and binding
obligation of Superholdings, Alamosa Delaware, the Borrower or such Loan Party
(as the case may be), enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any material consent or approval of, material registration or
filing with, or any other material action by, any Governmental Authority, except
such as have been obtained or made and are in full force and effect and except
filings necessary to perfect Liens created under the Loan Documents, (b) will
not violate any applicable law, statute, rule or regulation (other than any
violation that does not result in any significant adverse economic or other
effect) or the charter, by-laws or other organizational documents of
Superholdings and its subsidiaries, including APCS, Alamosa Delaware, the
Borrower or any of its subsidiaries or any order of any Governmental Authority,
(c) will not violate, result in a default under, or require any repurchase offer
under any material indenture, agreement or other instrument binding upon
Superholdings, APCS, Alamosa Delaware, the Borrower or any of the Restricted
Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by Superholdings, APCS, Alamosa Delaware, the Borrower or any
of the Restricted Subsidiaries, and (d) will not result in the creation or
imposition of any Lien on any asset of Superholdings, APCS, Alamosa Delaware,
the Borrower or any of the Restricted Subsidiaries, except Liens created under
the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
Alamosa Delaware has heretofore furnished to the Lenders its consolidated
balance sheet and statements of income, stockholders' equity and cash flows (i)
as of and for the fiscal year ended December 31, 1999, reported on by
PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and
for the fiscal quarter and the portion of the fiscal year ended September 30,
2000, certified by its chief financial officer. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of Alamosa Delaware and its consolidated Subsidiaries
or the Borrower and its consolidated subsidiaries, as applicable, as of such
dates and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii) above.
46
(b) Alamosa Delaware has heretofore furnished to the Lenders its pro
forma consolidated balance sheet as of September 30, 2000, prepared giving
effect to the ▇▇▇▇▇▇▇/WOW Transactions as if the ▇▇▇▇▇▇▇/WOW Transactions had
occurred on such date. Each of such pro forma consolidated balance sheets (i)
has been prepared in good faith based on the same assumptions used to prepare
the pro forma financial statements included in the Information Memorandum (which
assumptions are, as of the Original Effective Date, believed by Superholdings,
Alamosa Delaware and the Borrower to be reasonable), (ii) is based on the best
information available to Superholdings, Alamosa Delaware and the Borrower, as of
the Original Effective Date, after due inquiry, (iii) accurately reflects all
adjustments necessary to give effect to the ▇▇▇▇▇▇▇/WOW Transactions and (iv)
presents fairly, in all material respects, the pro forma financial position of
Superholdings and its consolidated subsidiaries, Alamosa Delaware and its
consolidated Subsidiaries or the Borrower and its consolidated subsidiaries, as
applicable, as of such date as if the ▇▇▇▇▇▇▇/WOW Transactions had occurred on
such date.
(c) Alamosa Delaware has heretofore furnished to the Lenders pro forma
summary consolidated information of Alamosa Delaware, in form and substance
satisfactory to the Administrative Agent, as of and for the fiscal year ended
December 31, 2000, prepared giving effect to the Transactions as if the
Transactions had occurred on such date. Such pro forma summary consolidated
financial information (i) has been prepared in good faith based on the same
assumptions used to prepare the pro forma financial statements provided to the
Lenders on March 19, 2001 (which assumptions are, as of the Restatement
Effective Date, believed by Superholdings, Alamosa Delaware and the Borrower to
be reasonable), (ii) is based on the best information available to
Superholdings, Alamosa Delaware and the Borrower, as of the Restatement
Effective Date, after due inquiry, (iii) accurately reflects all adjustments
necessary to give effect to the Transactions and (iv) presents fairly, in all
material respects, the pro forma financial position of Superholdings and its
consolidated subsidiaries, Alamosa Delaware and its consolidated Subsidiaries or
the Borrower and its consolidated subsidiaries, as applicable, as of such date
as if the Transactions had occurred on such date.
(d) Except as disclosed in the financial statements referred to above
or the notes thereto or in the Information Memorandum and except for the
Disclosed Matters, after giving effect to the Transactions, none of
Superholdings, APCS, Alamosa Delaware, the Borrower or the Restricted
Subsidiaries has, as of the Restatement Effective Date, any material contingent
liabilities, unusual long-term commitments or unrealized losses.
(e) Since December 31, 1999, there has been no material adverse change
in the business, assets, operations, prospects or condition, financial or
otherwise, of Superholdings, APCS, Alamosa Delaware, the Borrower and the
Restricted Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of Alamosa Delaware, the Borrower
and the Restricted Subsidiaries has good title to, or valid leasehold interests
in, all its real and personal property material to the business (including its
Mortgaged Properties) of Alamosa Delaware and the Restricted Subsidiaries,
except for Permitted Encumbrances.
47
(b) Each of Superholdings, APCS, Alamosa Delaware, the Borrower and
the Restricted Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its
business, and the use thereof by Superholdings, APCS, Alamosa Delaware, the
Borrower and the Restricted Subsidiaries does not infringe upon the rights of
any other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(c) Schedule 3.05 identifies all real property that is owned or leased
by Alamosa Delaware, the Borrower or any of the Restricted Subsidiaries as of
the Restatement Effective Date after giving effect to the Transactions.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of Superholdings, Alamosa
Delaware or the Borrower, threatened against or affecting Superholdings, APCS,
Alamosa Delaware, the Borrower or any of the Restricted Subsidiaries (i) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither Superholdings, APCS,
Alamosa Delaware, the Borrower nor any of the Restricted Subsidiaries (i) has
failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of
Superholdings, APCS, Alamosa Delaware, the Borrower and the Restricted
Subsidiaries is in compliance with (a) all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, (b) the terms of the Sprint
Agreements, and all other indentures, agreements and instruments binding upon it
or its property, except, in the case of agreements, indentures and instruments
other than the Sprint Agreements, where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither
Superholdings, APCS, Alamosa Delaware, the Borrower nor any of the Restricted
Subsidiaries is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
SECTION 3.09. Taxes. Each of Superholdings, APCS, Alamosa Delaware,
the Borrower and the Restricted Subsidiaries has timely filed or caused to be
filed all Tax returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it, except (a) any
Taxes that are being contested in good faith by appropriate proceedings and for
which Superholdings, APCS, Alamosa Delaware, the Borrower or such Restricted
Subsidiary, as applicable, has set aside on its books adequate reserves or (b)
to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
48
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $1,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $1,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which
Superholdings, APCS, Alamosa Delaware, the Borrower or any of the Restricted
Subsidiaries is subject, and all other matters known to any of them, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum, the Public
Information Memorandum nor any of the other reports, financial statements,
certificates or other information, taken as a whole, furnished by or on behalf
of any Loan Party to the Administrative Agent or any Lender in connection with
the negotiation of the Original Credit Agreement or this Agreement or any other
Loan Document or delivered hereunder or thereunder (as modified or supplemented
by other information so furnished) contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, Superholdings,
Alamosa Delaware and the Borrower represent only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.
SECTION 3.12. Restricted Subsidiaries. (a) Schedule 3.12 sets forth
the name of, and the ownership interest of Alamosa Delaware in, each Restricted
Subsidiary and identifies each Restricted Subsidiary that is a Subsidiary Loan
Party, in each case as of the Restatement Effective Date. Each License
Subsidiary and each Real Property Subsidiary is a Wholly Owned Subsidiary, and
all the Capital Stock of each such Person is directly or indirectly owned by the
Borrower free and clear of any Lien (other than Liens created by the Security
Documents).
(b) As of the date hereof, there is not any issued or outstanding
Capital Stock of Alamosa Delaware or other interest of or in Alamosa Delaware or
any of its Restricted Subsidiaries other than as described in subsection (a).
All outstanding Capital Stock of each Restricted Subsidiary of Alamosa Delaware
which is owned, directly or indirectly, by Alamosa Delaware or another
Restricted Subsidiary is free and clear of all Liens whatsoever (other than
Liens under the Security Documents).
(c) All Licenses which are directly or indirectly held by Alamosa
Delaware or any of its Restricted Subsidiaries are owned, beneficially and of
record free and clear of all Liens (other than Liens under the Security
Documents or under the Communications Act).
(d) All Real Property Assets and Real Property- Related Equipment
(other than Excluded Real Property Assets, Excluded Real Property-Related
Equipment, Secured Real Property Assets and Secured Real Property-Related
Equipment) which are directly or indirectly owned by the Borrower or any other
Loan Party are owned free and clear of all Liens (other than Liens under the
Security Documents or Permitted Encumbrances). The Real Property Assets of
Alamosa Delaware and its Restricted Subsidiaries (excluding Secured Real
Property Assets and Secured Real Property-Related Equipment) with respect to at
least 90% of the number of towers of Alamosa Delaware and the Restricted
Subsidiaries are owned, beneficially and of record, free and clear of all Liens
(other than the Liens under the Security Documents or Permitted Encumbrances) by
the Real Property Subsidiaries.
49
SECTION 3.13. Absence of Non-Permitted Obligations. None of the
Special Purpose Subsidiaries has any obligations or liabilities other than (a)
under the Guarantee Agreement and the Security Agreement, (b) subordinated
Guarantees in respect of the Alamosa Delaware Indentures, (c) in the case of
each Real Property Subsidiary, under any lease of real property or equipment
which it has entered into in the ordinary course of business and for taxes
incurred in the ordinary course of business which are incident to being the
owner or lessee of real property and equipment, (d) under the Special Purpose
Subsidiary Funding Agreements, (e) franchise and corporate taxes incurred in the
ordinary course in order for it to continue to maintain its existence and (f) as
otherwise permitted under Section 6.13.
SECTION 3.14. Licenses. (i) Pursuant to the Sprint Agreements, Alamosa
Delaware and its Restricted Subsidiaries have the use and benefit of all PCS
Licenses necessary to operate a System in the Service Regions and each other
area in which Alamosa Delaware or any of its Restricted Subsidiaries conducts
broadband personal communications operations and (ii) Alamosa Delaware and its
Restricted Subsidiaries (x) hold all point-to-point microwave Licenses, if any,
necessary to operate the Systems in the Service Regions and each other area in
which Alamosa Delaware or any of its Restricted Subsidiaries conducts broadband
personal communications operations, each of which has been duly issued by the
FCC, is held, except as otherwise contemplated by Section 5.15(b), by a License
Subsidiary and is in full force and effect, and (y) are in compliance in all
material respects with all of the provisions of each such microwave License.
SECTION 3.15. Insurance. Schedule 3.15 sets forth a description of all
insurance maintained by or on behalf of Alamosa Delaware and its Restricted
Subsidiaries as of the Restatement Effective Date. As of the Restatement
Effective Date, all premiums in respect of such insurance have been paid.
Superholdings, Alamosa Delaware and the Borrower believe that the insurance
maintained by or on behalf of Alamosa Delaware and its Restricted Subsidiaries
is adequate.
SECTION 3.16. Labor Matters. As of the Restatement Effective Date,
there are no strikes, lockouts or slowdowns against Superholdings, APCS, Alamosa
Delaware, the Borrower or any Restricted Subsidiary pending or, to the knowledge
of Holding, Alamosa Delaware or the Borrower, threatened. All significant
payments due from Superholdings, APCS, Alamosa Delaware, the Borrower or any
Restricted Subsidiary, or for which any claim may be made against Superholdings,
APCS, Alamosa Delaware, the Borrower or any Restricted Subsidiary, on account of
wages and employee health and welfare insurance and other benefits, have been
paid or accrued as a liability on the books of Superholdings, APCS, Alamosa
Delaware, the Borrower or such Restricted Subsidiary. The consummation of the
Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which Superholdings, APCS, Alamosa Delaware, the Borrower or any Restricted
Subsidiary is bound.
50
SECTION 3.17. Solvency. Immediately after the consummation of the
▇▇▇▇▇▇▇/WOW Transactions that occurred on the Original Effective Date and
immediately following the making of each Loan made on the Original Effective
Date and after giving effect to the application of the proceeds of such Loans
(collectively, the "Original Transactions"), and immediately after the
consummation of the Transactions to occur on the Restatement Effective Date and
immediately following the making of each Loan made on the Restatement Effective
Date and after giving effect to the application of the proceeds of such Loans
(the "New Transactions"), (a) the fair value of the assets of each Loan Party,
at a fair valuation, did, in the case of the Original Transactions, or will, in
the case of the New Transactions, exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party was, in the case of the Original Transactions,
or will be, in the case of the New Transactions, greater than the amount that
was, in the case of the Original Transactions, or will be, in the case of the
New Transactions, required to pay the probable liability of its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) each Loan Party was, in the case of
the Original Transactions, or will be, in the case of the New Transactions, able
to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) each Loan Party did
not, in the case of the Original Transactions, or will not, in the case of the
New Transactions, have unreasonably small capital with which to conduct the
business in which it is engaged as such business, in the case of the Original
Transactions, was conducted and was proposed to be conducted following the
Original Effective Date or, in the case of the New Transactions, is now
conducted and is proposed to be conducted following the Restatement Effective
Date.
SECTION 3.18. Use of Proceeds. The proceeds of the Loans and the
Letters of Credit will be used only for the purposes specified in the
preamble of this Agreement.
SECTION 3.19. FCC Compliance. (a) Alamosa Delaware and each
Restricted Subsidiary are in compliance in all material respects with the
Communications Act.
(b) None of Superholdings, Alamosa Delaware or the Borrower has
knowledge of any investigation, notice of apparent liability, violation,
forfeiture or other order or complaint issued by or before the FCC, or of any
other proceedings (other than proceedings relating to the wireless
communications industries generally) of or before the FCC, which could
reasonably be expected to have a Material Adverse Effect.
(c) No event has occurred which (i) results in, or after notice or
lapse of time or both would result in, revocation, suspension, adverse
modification, non-renewal, impairment, restriction or termination of, or order
of forfeiture with respect to, any License in any respect which could reasonably
be expected to have a Material Adverse Effect or (ii) affects or could
reasonably be expected in the future to affect any of the rights of Alamosa
Delaware, the Borrower or any License Subsidiary under any License held by
Alamosa Delaware, the Borrower or any License Subsidiary in any respect which
could reasonably be expected to have a Material Adverse Effect.
(d) Each of Alamosa Delaware, the Borrower and the License
Subsidiaries has duly filed in a timely manner all material filings, reports,
applications, documents, instruments and information required to be filed by it
under the Communications Act, and all such filings were when made true, correct
and complete in all material respects.
(e) Alamosa Delaware has no reason to believe that each License of
Alamosa Delaware or any of its Restricted Subsidiaries will not be renewed in
the ordinary course.
51
SECTION 3.20. Security Documents. (a) The Pledge Agreement is
effective to create in favor of the Administrative Agent, for the ratable
benefit of the Secured Parties, a legal, valid and enforceable security interest
in the Collateral (as defined in the Pledge Agreement) and, when the Collateral
is delivered to the Administrative Agent, the Pledge Agreement shall create a
fully perfected first priority Lien on, and security interest in, all right,
title and interest of the pledgors thereunder in such Collateral, in each case
prior and superior in right to any other Person.
(b) The Security Agreement is effective to create in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in the
Security Agreement) and, when financing statements in appropriate form are filed
in the offices specified on Schedule 6 to the Perfection Certificate, as updated
by the Borrower from time to time in accordance with Section 5.03, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in such Collateral
(other than the Intellectual Property, as defined in the Security Agreement), to
the extent perfection can be obtained by filing Uniform Commercial Code
financing statements, in each case prior and superior in right to any other
Person, other than with respect to Liens expressly permitted by Section 6.02.
(c) When the Security Agreement is filed in the United States Patent
and Trademark Office and the United States Copyright Office, and, with respect
to Collateral in which a security interest cannot be perfected by such filings,
upon the filing of the financing statements referred to in paragraph (b) above,
the Security Agreement and such financing statements shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the grantors thereunder in the Intellectual Property (as defined in the Security
Agreement), in each case prior and superior in right to any other Person (it
being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a lien on registered trademarks, trademark applications and copyrights
acquired by the grantors after the date hereof).
(d) The Mortgages, if any, are effective to create in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable Lien on all of Alamosa Delaware's right, title and
interest in and to the Mortgaged Property thereunder and the proceeds thereof,
and when the Mortgages are filed in the offices specified on Schedule 3.22, the
Mortgages shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of Alamosa Delaware in such Mortgaged Property and
the proceeds thereof, in each case prior and superior in right to any other
Person, other than with respect to the rights of Persons pursuant to Liens
expressly permitted by Section 6.02.
SECTION 3.21. Copyrights, Trademarks, etc. Alamosa Delaware and the
Restricted Subsidiaries own, or are licensed to use, all copyrights, trademarks,
trade names, patents, technology, know-how and processes, service marks and
rights with respect to the foregoing that are used in or necessary for the
conduct of their respective businesses as currently conducted unless the failure
to obtain such item could not reasonably be expected to result in a Material
Adverse Effect. To the knowledge of any Loan Party, the use of such copyrights,
trademarks, trade names, patents, technology, know-how and processes, service
marks and rights with respect to the foregoing by Alamosa Delaware and the
Restricted Subsidiaries does not infringe in any material respect on the rights
of any Person.
SECTION 3.22. Federal Regulations. No part of the proceeds of any
Loans will be used in any manner which would result in a violation of Regulation
U or X of the Board as now and from time to time hereafter in effect or to buy
or carry "margin stock" (as defined thereunder) or to refinance any Indebtedness
incurred for such purpose.
SECTION 3.23. Total Borrower Capital. As of the Original Effective
Date, Total Borrower Capital was equal to at least $596,500,000 and as of the
Restatement Effective Date, Total Borrower Capital is equal to at least
$625,931,000.
52
ARTICLE IV
Conditions
SECTION 4.01. Restatement Effective Date. The obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Restatement Effective Date) of each of (i) Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, counsel for the Borrower, substantially in the form of
Exhibit B-1, (ii) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, counsel for the
Borrower, substantially in the form of Exhibit B-2, (iii) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
LLP, special Wisconsin counsel for the Borrower, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ &
Niegel, special Oregon and Washington counsel for the Borrower, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, special Missouri counsel for the Borrower, Fob ▇▇▇▇▇, special
Oklahoma counsel for the Borrower, ▇▇▇▇▇▇▇ Law Firm, special Arkansas
counsel for the Borrower, and ▇▇▇▇▇ & ▇▇▇▇▇, special Kansas counsel for the
Borrower, substantially in the form of Exhibit B-3, and (iv) ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, counsel to Sprint PCS, as to validity of Licenses, in form and
substance satisfactory to the Administrative Agent, and, in the case of
each such opinion required by this paragraph, covering such other matters
relating to the Loan Parties, the Loan Documents or the Southwest
Transactions as the Required Lenders shall reasonably request. Each of
Superholdings, Alamosa Delaware and the Borrower hereby requests such
counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each
Loan Party, the authorization of the Southwest Transactions and any other
legal matters relating to the Loan Parties, the Loan Documents or the
Southwest Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Restatement Effective Date and signed by the President, a Vice
President or a Financial Officer of the Borrower, confirming compliance
with the conditions set forth in paragraphs (a), (b) and (c) of Section
4.02.
53
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Restatement Effective Date,
including, to the extent invoiced, reimbursement or payment of all out-
of-pocket expenses (including fees, charges and disbursements of counsel)
required to be reimbursed or paid by any Loan Party hereunder or under any
other Loan Document.
(f) The Collateral and Guarantee Requirement shall have been satisfied
and the Administrative Agent shall have received a completed Perfection
Certificate dated the Restatement Effective Date and signed by an executive
officer or Financial Officer of the Borrower, together with all attachments
contemplated thereby, including the results of a search of the Uniform
Commercial Code (or equivalent) filings made with respect to the Targets in
the jurisdictions contemplated by the Perfection Certificate and copies of
the financing statements (or similar documents) disclosed by such search
and evidence reasonably satisfactory to the Administrative Agent that the
Liens indicated by such financing statements (or similar documents) are
permitted by Section 6.02 or have been released.
(g) The Administrative Agent shall have received evidence that the
insurance required by Section 5.07 and the Security Documents is in effect.
(h) As of the Restatement Effective Date, Alamosa Delaware shall, on a
pro forma basis, be in compliance with the Financial Covenants.
(i) The Lenders shall have received an 8-year business plan of each of
Alamosa Delaware and the Borrower, with quarterly projections for the
five-year period following the Restatement Effective Date, which shall be
satisfactory to the Lenders.
(j) Except as set forth in Schedule 4.01, all material consents and
approvals required to be obtained from any Governmental Authority or other
Person in connection with the Southwest Merger Transaction and the other
Southwest Transactions (including, without limitation, FCC approval) shall
have been obtained, and all applicable waiting periods and appeal periods
shall have expired (or the Agents shall be reasonably satisfied that there
is no significant risk of an appeal being made prior to the expiration of
any such appeal period), in each case without the imposition of any
burdensome conditions. The Southwest Merger Transaction shall have been
consummated immediately prior to, and the other Southwest Transactions
shall be consummated substantially simultaneously with, the initial funding
of Loans on the Restatement Effective Date in accordance with the Southwest
Agreement and applicable law, without any amendment to or waiver of any
material terms or conditions of the Southwest Agreement adverse to the
Lenders not approved by the Required Lenders. The Administrative Agent
shall have received copies of the Southwest Agreement and all certificates,
opinions and other documents delivered thereunder, certified by a Financial
Officer as complete and correct.
(k) The Borrower shall have received the Additional Alamosa Delaware
Contribution. The terms and conditions of the Additional Alamosa Delaware
Contribution and the provisions of the documents related thereto shall be
reasonably satisfactory to the Administrative Agent. The Administrative
Agent shall have received copies of the documents related to the Additional
Alamosa Delaware Contribution, certified by a Financial Officer as complete
and correct.
54
(l) The Lenders shall have received (i) pro forma summary consolidated
financial information of Alamosa Delaware, in form and substance
satisfactory to the Administrative Agent, as of and for the fiscal year
ended December 31, 2000, reflecting all pro forma adjustments as if the
Transactions had been consummated on such date, and such pro forma summary
consolidated financial information shall be consistent in all material
respects with the forecasts and other information previously provided to
the Lenders, (ii) audited consolidated balance sheet and related statements
of income, stockholders' equity and cash flows of Southwest Holdings as of
and for the fiscal year ended December 31, 1999, all reported on by Ernst &
Young LLP to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of
operations of Southwest Holdings, and its consolidated subsidiaries, on a
consolidated basis in accordance with GAAP consistently applied, and such
audited consolidated balance sheet, statements of income, stockholders'
equity and cash flows shall be consistent in all material respects with the
information previously provided to the Lenders and (iii) to the extent
requested by the Lenders, unaudited consolidated balance sheets and related
statements of income, stockholders' equity and cash flows of Southwest
Holdings as of the end of and for each month and fiscal quarter ending
after December 31, 1999, and such unaudited consolidated balance sheets,
statements of income, stockholders' equity and cash flows shall be
consistent in all material respects with the information previously
provided to the Lenders.
(m) After giving effect to the Transactions, neither Superholdings,
APCS, Alamosa Delaware, the Borrower nor any of the Restricted Subsidiaries
shall have outstanding any shares of preferred stock or any Indebtedness,
other than (i) Indebtedness incurred under the Loan Documents, (ii)
$350,000,000 of Indebtedness in respect of the 12 7/8% Senior Discount
Notes, (iii) $250,000,000 of Indebtedness in respect of the 12 1/2% Senior
Notes and (iv) Capital Lease Obligations in an aggregate amount not in
excess of $2,000,000. The aggregate amount of the Transaction Costs shall
not exceed $11,603,000.
(n) The Administrative Agent shall have received a solvency letter, in
form and substance satisfactory to the Lenders, from the chief financial
officer of Superholdings, with respect to the solvency of the Loan Parties
after giving effect to the Transactions.
(o) The Administrative Agent shall have received evidence reasonably
satisfactory to it that all existing indebtedness of the Targets
substantially simultaneously with the initial funding of the Loans on the
Restatement Effective Date shall be repaid, that all commitments in
connection therewith substantially simultaneously with the initial funding
of Loans on the Restatement Effective Date shall be terminated and all
Liens securing any Indebtedness thereunder substantially simultaneously
with the initial funding of Loans on the Restatement Effective Date shall
be released.
(p) There shall have been no material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of
Superholdings, APCS, Alamosa Delaware, the Borrower and the Restricted
Subsidiaries, taken as a whole, and each of ▇▇▇▇▇▇▇, WOW and the Targets
since December 31, 1999.
55
(q) The Sprint Agreements shall be in full force and effect and no
Loan Party shall be aware of any default in any significant respect by any
party thereto in the performance of its obligations thereunder. Sprint PCS,
affiliates of Sprint PCS that are party to or bound by the Sprint
Agreements and Alamosa Delaware and its Restricted Subsidiaries (including
Southwest) shall have executed and delivered an Amended and Restated
Consent and Agreement with the Administrative Agent, acting for the
Lenders, and the Amended and Restated Consent and Agreement shall be in
full force and effect.
(r) Alamosa Delaware shall have transferred to (i) the Real Property
Subsidiaries all Real Property Assets and Real Property-Related Equipment
other than (A) Real Property Assets constituting rights under leases that
as of the date hereof prohibit such transfer (without regard to any such
prohibition which contains exceptions if Alamosa Delaware or any Restricted
Subsidiary remains liable for the obligations under the applicable lease or
if Alamosa Delaware or the Restricted Subsidiaries were to take other
actions which are reasonably (considering the expenses involved) within
their power to take ("Restricted Real Property Assets")), (B) equipment
which constitutes a fixture to any Restricted Real Property Asset
("Restricted Real Property-Related Equipment") and (C) Secured Real
Property Assets and Secured Real Property Related Equipment, but in any
event the Borrower shall have so transferred leasehold interests covering
at least 90% of the number of towers leased (or on which space is leased)
by Alamosa Delaware and the Restricted Subsidiaries (excluding Secured Real
Property Assets and Secured Real Property- Related Equipment) as of the
date hereof and provided evidence reasonably satisfactory to the
Administrative Agent of the transfers described above and (ii) a License
Subsidiary all Licenses, except as otherwise contemplated by Section
5.15(b), which are directly or indirectly held by Alamosa Delaware or any
of the Restricted Subsidiaries (including the Licenses listed on Schedule
3.14), in each case free and clear of all Liens whatsoever (other than
Liens created by the Security Documents and (x) with respect to any Real
Property Subsidiary, Permitted Encumbrances, and, in the case of leasehold
interests in towers, Liens permitted by Section 6.02 on equipment
constituting fixtures with respect to the towers subject to such leases,
and (y) with respect to any License Subsidiary, Liens arising under the
Communications Act), and each Special Purpose Subsidiary shall have entered
into a Special Purpose Subsidiary Funding Agreement with the Borrower.
(s) There shall be no litigation or administrative proceeding
commenced that could reasonably be expected to have a Material Adverse
Effect.
(t) The Lenders shall have received written confirmation from ▇▇▇▇▇'▇
and S&P that, as of the Restatement Effective Date, after giving effect to
the Transactions (i) the rating of the senior, unsecured,
non-credit-enhanced, publicly held, long-term indebtedness for borrowed
money of Alamosa Delaware by each of ▇▇▇▇▇'▇ and S&P are no lower than Caa1
and CCC, respectively, and (ii) the rating of the facilities hereunder by
each of ▇▇▇▇▇'▇ and S&P are no lower than B2 and B-, respectively.
(u) The Administrative Agent shall have received evidence reasonably
satisfactory to it that the Borrower has made equity contributions to each
of Alamosa, ▇▇▇▇▇▇▇, WOW and Southwest in amounts sufficient to ensure that
the contributed equity of each of Alamosa, ▇▇▇▇▇▇▇, WOW and Southwest is at
least equal to (i) in the case of Alamosa, the amount of Indebtedness of
Alamosa refinanced with Term Loans hereunder, (ii) in the case of ▇▇▇▇▇▇▇,
$20,000,000, (iii) in the case of WOW, $10,000,000 and (iv) in the case of
Southwest, $53,000,000.
56
(v) The Administrative Agent shall have received evidence reasonably
satisfactory to it that, as of the Restatement Effective Date, Total
Borrower Capital is equal to at least $625,931,000.
The Administrative Agent shall notify the Borrower and the Lenders of the
Restatement Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 5:00 p.m., New York time, on April 30,
2001 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to make
a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set forth in
the Loan Documents shall be true and correct in all material respects on
and as of the date of such Borrowing or the date of issuance, amendment,
renewal or extension of such Letter of Credit, as applicable, except to the
extent any representation or warranty expressly relates to an earlier date
(in which case such representation or warranty shall be true and correct as
of such earlier date).
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be continuing.
(c) The ratio of Senior Debt to Net Property, Plant and Equipment on
the last day of the fiscal quarter ending immediately prior to such
Borrowing shall not exceed 1.00:1.00.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by
Superholdings, Alamosa Delaware and the Borrower on the date thereof as to the
matters specified in paragraphs (a), (b) and (c) of this Section.
57
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each of Superholdings, Alamosa
Delaware and the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a)(i) within 90 days after the end of each fiscal year (A) of each of
Superholdings (commencing with the fiscal year ending December 31, 2001)
and Alamosa Delaware and its Restricted Subsidiaries, its audited
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by PricewaterhouseCoopers LLP or other
independent public accountants of recognized national standing (without a
"going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of Superholdings
or Alamosa Delaware, as the case may be, and its consolidated Subsidiaries,
on a consolidated basis in accordance with GAAP consistently applied and
(B) of the Borrower, its unaudited consolidated balance sheets and related
statement of operations and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, (ii)
within 90 days after the end of each fiscal year of Alamosa Delaware, its
consolidating balance sheets and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and results of
operations of Alamosa Delaware and its consolidated Subsidiaries on a
consolidating basis in accordance with GAAP consistently applied and (iii)
at the time of delivery of the financial statements set forth above for the
fiscal year ending December 31, 2001, (A) a narrative summary containing a
detailed explanation of the financial performance of Alamosa Delaware and
its Restricted Subsidiaries for such fiscal year and the fiscal quarter
then ending as compared against the Alamosa Delaware consolidated financial
model provided to the Lenders on March 12, 2001 and (B) a quantitative
analysis containing a detailed comparison of the financial performance of
Alamosa Delaware and its Restricted Subsidiaries for such fiscal year and
fiscal quarter as compared against the Alamosa Delaware consolidated
financial model provided to the Lenders on March 12, 2001, in each case in
form satisfactory to the Administrative Agent;
58
(b) within 45 days after the end of (i) each of the first three fiscal
quarters of each fiscal year (A) of each of Superholdings and Alamosa
Delaware, its consolidated and consolidating balance sheets and related
statements of operations, stockholders' equity and cash flows as of the end
of and for such fiscal quarter and the then elapsed portion of the fiscal
year and (B) of the Borrower, its consolidated balance sheet and related
statement of operations and cash flows as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of the
corresponding period or periods of) the previous fiscal year, all certified
by one of its Financial Officers as presenting fairly in all material
respects the financial condition and results of operations of Superholdings
or Alamosa Delaware, as the case may be, and its consolidated Subsidiaries
or the Borrower and its consolidated subsidiaries, as applicable, on a
consolidated or consolidating basis, as applicable, in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes, and (ii) each fiscal quarter ending on or before June
30, 2002, (A) a narrative summary containing a detailed explanation of the
financial performance of Alamosa Delaware and its Restricted Subsidiaries
for such fiscal quarter as compared against the Alamosa Delaware
consolidated financial model provided to the Lenders on March 12, 2001 and
(B) a quantitative analysis containing a detailed comparison of the
financial performance of Alamosa Delaware and its Restricted Subsidiaries
for such fiscal quarter as compared against the Alamosa Delaware
consolidated financial model provided to the Lenders on March 12, 2001, in
each case in form satisfactory to the Administrative Agent;
(c) within 30 days after the end of each of the first two fiscal
months of each fiscal quarter of the Borrower ending on or before June 30,
2002, its internal management report as of the end of and for such fiscal
month and the then elapsed portion of the fiscal year, in the same form as
delivered to management of Alamosa Delaware and the Borrower;
(d) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower, Alamosa Delaware or Superholdings, as applicable, (i) certifying
as to whether, to the best of such officer's knowledge, a Default has
occurred and is continuing, and, if a Default has occurred and is
continuing, specifying the details thereof and any action taken or proposed
to be taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with the Financial Covenants and
(iii) stating whether any change in GAAP or in the application thereof has
occurred since the date of the Borrower's, Alamosa Delaware's or
Superholdings', as applicable, audited financial statements referred to in
Section 3.04 and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under
clause (a)(i) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any Default
(which certificate may be limited to the extent required by accounting
rules or guidelines);
59
(f) at least 60 days after the commencement of each fiscal year of the
Borrower, a detailed consolidated budget for such fiscal year (including a
projected consolidated balance sheet and related statements of projected
operations and cash flow as of the end of and for such fiscal year and
setting forth the assumptions used for purposes of preparing such budget)
and, promptly when available, any significant revisions of such budget;
(g) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
Superholdings, Alamosa Delaware, the Borrower or any Restricted Subsidiary
with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with any
national securities exchange, or distributed by Superholdings to its
shareholders generally, as the case may be; and
(h) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of
Superholdings, APCS, Alamosa Delaware, the Borrower or any Restricted
Subsidiary, including without limitation information on revenue, churn and
system information on a quarterly basis and certain subscriber information
on a monthly basis, or compliance with the terms of any Loan Document, as
the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. Superholdings, Alamosa
Delaware and the Borrower will furnish to the Administrative Agent and each
Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting
Superholdings, APCS, Alamosa Delaware, the Borrower or any Affiliate
thereof that, if adversely determined, could reasonably be expected to
result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
60
SECTION 5.03. Information Regarding Collateral. (a) The Borrower will
furnish to the Administrative Agent prompt written notice of any change (i) in
any Loan Party's corporate name or in any trade name used to identify it in the
conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office, its principal place of
business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in any Loan Party's identity or corporate structure or (iv) in any Loan
Party's Federal Taxpayer Identification Number. Each of Alamosa Delaware and the
Borrower agrees not to effect or permit any change referred to in the preceding
sentence unless all filings have been made under the Uniform Commercial Code or
otherwise that are required in order for the Administrative Agent to continue at
all times following such change to have a valid, legal and perfected security
interest in all the Collateral. The Borrower also agrees promptly to notify the
Administrative Agent if any material portion of the Collateral is damaged or
destroyed.
(b) Each year, at the time of delivery of annual financial statements
with respect to the preceding fiscal year pursuant to clause (a) of Section
5.01, the Borrower shall deliver to the Administrative Agent a certificate of a
Financial Officer of the Borrower (i) setting forth the information required
pursuant to Section 2 of the Perfection Certificate or confirming that there has
been no change in such information since the date of the Perfection Certificate
delivered on the Restatement Effective Date or the date of the most recent
certificate delivered pursuant to this Section and (ii) certifying that all
Uniform Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations, including
all refilings, rerecordings and reregistrations, containing a description of the
Collateral have been filed of record in each governmental, municipal or other
appropriate office in each jurisdiction identified pursuant to clause (i) above
to the extent necessary to protect and perfect the security interests under the
Security Agreement for a period of not less than 18 months after the date of
such certificate (except as noted therein with respect to any continuation
statements to be filed within such period).
SECTION 5.04. Existence; Conduct of Business. Each of Superholdings,
Alamosa Delaware and the Borrower will, and will cause APCS and the Restricted
Subsidiaries to, do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence and the rights, licenses,
permits, privileges, franchises, patents, copyrights, trademarks and trade names
material to the conduct of its business; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.03.
SECTION 5.05. Payment of Obligations. Each of Superholdings, Alamosa
Delaware and the Borrower will, and will cause APCS and each of the Restricted
Subsidiaries to, pay its Indebtedness and other material obligations, including
material Tax liabilities, before the same shall become delinquent or in default,
except where (a) the validity or amount thereof is being contested in good faith
by appropriate proceedings, (b) Superholdings, APCS, Alamosa Delaware, the
Borrower or such Restricted Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (c) such contest
effectively suspends collection of the contested obligation and the enforcement
of any Lien securing such obligation.
61
SECTION 5.06. Maintenance of Properties. Each of
Superholdings, Alamosa Delaware and the Borrower will, and will cause APCS and
each of the Restricted Subsidiaries to, keep and maintain all property material
to the conduct of its business in good working order and condition, ordinary
wear and tear excepted.
SECTION 5.07. Insurance. Each of Superholdings, Alamosa Delaware and
the Borrower will, and will cause APCS and each of the Restricted Subsidiaries
to, maintain, with financially sound and reputable insurance companies (a)
insurance in such amounts (with no greater risk retention) and against such
risks as are customarily maintained by companies of established repute engaged
in the same or similar businesses operating in the same or similar locations and
(b) all insurance required to be maintained pursuant to the Security Documents.
The Borrower will furnish to the Lenders, upon request of the Administrative
Agent, information in reasonable detail as to the insurance so maintained.
SECTION 5.08. Casualty and Condemnation. The Borrower (a) will furnish
to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to any material portion of any Collateral or
the commencement of any action or proceeding for the taking of any Collateral or
any part thereof or interest therein having a fair market value in excess of
$100,000 under power of eminent domain or by condemnation or similar proceeding
and (b) will ensure that the Net Proceeds of any such event (whether in the form
of insurance proceeds, condemnation awards or otherwise) are collected and
applied in accordance with the applicable provisions of Section 2.10(c).
SECTION 5.09. Books and Records; Inspection and Audit Rights. Each of
Superholdings, Alamosa Delaware and the Borrower will, and will cause APCS and
each of the Restricted Subsidiaries to, keep proper books of record and account
in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. Each of Superholdings,
Alamosa Delaware and the Borrower will, and will cause APCS and each of the
Restricted Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender (after consultation with, and subject to
coordination of visits by, the Administrative Agent), upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested.
SECTION 5.10. Compliance with Laws. Each of Superholdings, Alamosa
Delaware and the Borrower will, and will cause APCS and each of the Restricted
Subsidiaries to, comply with all laws, rules, regulations and orders of any
Governmental Authority applicable to it or its property, and to comply in all
material respects with all of its Contractual Obligations (including obligations
under any License), in each case, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 5.11. Use of Proceeds and Letters of Credit. The proceeds of
the Loans and issuances of Letters of Credit will be used only for the purposes
set forth in the preamble of this Agreement. No part of the proceeds of any Loan
will be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations U and X.
62
SECTION 5.12. Additional Subsidiaries. If any additional Subsidiary is
formed or acquired after the Restatement Effective Date (and such Subsidiary has
assets in excess of $100,000 or acquires assets in excess of $100,000 or has
revenue in excess of $10,000 per annum), the Borrower will, within three
Business Days after such Subsidiary is formed or acquired, notify the
Administrative Agent thereof and cause the Collateral and Guarantee Requirement
to be satisfied with respect to Subsidiary (if it is a Subsidiary Loan Party)
and with respect to any Equity Interest in or Indebtedness of such Subsidiary
owned by or on behalf of any Loan Party.
SECTION 5.13. Further Assurances. (a) Each of Superholdings, Alamosa
Delaware and the Borrower will, and will cause APCS and each Subsidiary Loan
Party to, execute any and all further documents, financing statements,
agreements and instruments, and take all such further actions (including the
filing and recording of financing statements, fixture filings, mortgages, deeds
of trust and other documents), which may be required under any applicable law,
or which the Administrative Agent or the Required Lenders may reasonably
request, to cause the Collateral and Guarantee Requirement to be and remain
satisfied, all at the expense of the Loan Parties. Superholdings, Alamosa
Delaware and the Borrower also agree to provide to the Administrative Agent,
from time to time upon request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.
(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by Alamosa Delaware,
the Borrower or any Subsidiary Loan Party after the Restatement Effective Date
(other than assets constituting Collateral under the Security Documents that
become subject to the Lien of the Security Documents upon acquisition thereof),
the Borrower will notify the Administrative Agent thereof, and, if requested by
the Administrative Agent or the Required Lenders, the Borrower will cause such
assets to be subjected to a Lien securing the Obligations and will take, and
cause the Subsidiary Loan Parties to take, such actions as shall be necessary or
reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in paragraph (a) of this Section, all at the
expense of the Loan Parties. In addition, if (i) any License is acquired by
Alamosa Delaware, the Borrower or any Restricted Subsidiary (other than a
designated License Subsidiary) Alamosa Delaware will promptly transfer or cause
the transfer to a designated License Subsidiary for such License, (ii) any Real
Property Assets (other than Restricted Real Property Assets, Secured Real
Property Assets and Excluded Real Property Assets) or any Real Property-Related
Equipment (other than Restricted Real Property-Related Equipment, Secured Real
Property-Related Equipment and Excluded Real Property Equipment) is acquired by
Alamosa Delaware, the Borrower or any Restricted Subsidiary Alamosa Delaware
will promptly transfer or cause the transfer of such assets to the Real Property
Subsidiaries (provided, however, that any leasehold interest relating to a tower
need not be transferred to a Real Property Subsidiary so long as leases covering
at least 90% of the number of towers leased by Alamosa Delaware and the
Restricted Subsidiaries (excluding Secured Real Property Assets) are at the time
held by the Real Property Subsidiaries) and (iii) any fee interests in real
property (other than Excluded Real Property Assets) having at the time of
acquisition thereof a purchase price or fair market value greater than
$1,000,000 (a "Mortgaged Property") are acquired by Alamosa Delaware, the
Borrower or any Restricted Subsidiary after the date hereof (including Mortgaged
Properties of any Person that becomes a Restricted Subsidiary or is merged with
or into or consolidated with the Borrower or any Restricted Subsidiary) the
Borrower will promptly create or cause to be created a first priority (other
than with respect to Permitted Encumbrances) perfected Mortgage in favor of the
Administrative Agent for the benefit of the Secured Parties on, and pay all
recording taxes, title insurance costs, survey costs and other costs in
connection with such Mortgage.
63
SECTION 5.14. Interest Rate Protection. As promptly as practicable,
and in any event within 90 days after the Original Effective Date, the Borrower
will enter into, and thereafter for a period of not less than three years from
the date hereof will maintain in effect, one or more interest rate protection
agreements on such terms and with such parties as shall be reasonably
satisfactory to the Agents, the effect of which shall be to fix or limit the
interest cost to the Borrower with respect to at least 40% of the outstanding
Term Loans.
SECTION 5.15. Post-Closing Matters. (a) The Borrower will maintain,
until released by the Administrative Agent, the existing cash collateralized
letter of credit facility in an amount equal $11,500,000 for letters of credit
securing the Obligations (other than the ▇▇▇▇▇▇▇ Obligations, the WOW
Obligations and the Southwest Obligations (each as defined in the Security
Agreement)); (b) as promptly as practicable, and in any event within 45 days,
the Targets shall transfer to a License Subsidiary all Licenses held directly or
indirectly by any of the Targets; and (c) as soon as available, Alamosa Delaware
shall deliver to the Lenders the audited consolidated balance sheet and related
statements of operations, members' equity and cash flows of Southwest Holdings
as of and for the year ended December 31, 2000, setting forth in comparative
form the figures for the previous fiscal year, all reported on by Ernst & Young
LLP (without a "going concern" or like qualification or exception and without
any qualification or exception as to the scope of such audit) to the effect that
such consolidated financial statements present fairly in all material respects
the financial condition and results of operations of Southwest Holdings and its
consolidated subsidiaries, on a consolidated basis in accordance with GAAP
consistently applied.
64
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, each of Superholdings, Alamosa Delaware and the
Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a)
Alamosa Delaware will not, and will not permit any Restricted Subsidiary
to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the date hereof and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof
or result in an earlier maturity date or decreased weighted average life
thereof;
(iii) Indebtedness of Alamosa Delaware to any Restricted Subsidiary
(other than a Special Purpose Subsidiary) and of any Restricted Subsidiary
(other than a Special Purpose Subsidiary) to Alamosa Delaware or any other
Restricted Subsidiary (other than a Special Purpose Subsidiary); provided
that Indebtedness of any Restricted Subsidiary that is not a Loan Party to
Alamosa Delaware or any Subsidiary Loan Party shall be subject to Section
6.04;
(iv) Guarantees (A) by Alamosa Delaware of Indebtedness of any
Restricted Subsidiary, (B) by any Restricted Subsidiary (other than a
Special Purpose Subsidiary) of Indebtedness of any other Restricted
Subsidiary, (C) by any Restricted Subsidiary of Indebtedness of Alamosa
Delaware under the Alamosa Delaware Indentures (on a subordinated basis, as
permitted by the Alamosa Delaware Indentures) and (D) by any Restricted
Subsidiary of Indebtedness that extends, renews or replaces the
Indebtedness of Alamosa Delaware under the Alamosa Delaware Indentures as
permitted by Section 6.01(ii) (provided such Guarantees are subordinated to
the obligations of the Loan Parties under the Loan Documents on terms not
less favorable to the Secured Parties than the subordination provisions in
the Guarantees under the Alamosa Delaware Indentures and the terms of such
Guarantees are otherwise no more favorable to the beneficiaries thereof
than the Guarantees under the Alamosa Delaware Indentures); provided that
Guarantees by Alamosa Delaware or any Subsidiary Loan Party of Indebtedness
of any Restricted Subsidiary that is not a Loan Party shall be subject to
Section 6.04;
(v) Indebtedness of Alamosa Delaware or any Restricted Subsidiary
(other than any Special Purpose Subsidiary) incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations (other than in connection with
outsourced service provider programs or sale and leaseback transactions
permitted by Section 6.06) and any Indebtedness assumed in connection with
the acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and replacements
of any such Indebtedness that do not increase the outstanding principal
amount thereof or result in an earlier maturity date or decreased weighted
average life thereof; provided that (A) such Indebtedness is incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement and (B) the aggregate principal amount of
Indebtedness permitted by this clause (v) shall not exceed $10,000,000 at
any time outstanding;
65
(vi) other unsecured Indebtedness and Guarantees of Alamosa Delaware
and the Restricted Subsidiaries (other than any Special Purpose Subsidiary)
in an aggregate principal amount not exceeding $5,000,000 at any time
outstanding;
(vii) surety, performance and other similar bonds incurred by Alamosa
Delaware or any Restricted Subsidiary (other than any Special Purpose
Subsidiary) in the ordinary course of business not securing Indebtedness
for borrowed money;
(viii) Indebtedness of Alamosa Delaware or any Restricted Subsidiary
(other than any Special Purpose Subsidiary) under interest rate protection
agreements permitted by Section 6.07;
(ix) Indebtedness of any Person that becomes a Restricted Subsidiary
after the date hereof (and any extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof or
result in an earlier maturity date or decreased weighted average life
thereof); provided that (A) such Indebtedness exists at the time such
Person becomes a Restricted Subsidiary and is not created in contemplation
of or in connection with such Person becoming a Restricted Subsidiary, (B)
such Restricted Subsidiary becomes a Subsidiary Loan Party and the
Collateral and Guarantee Requirement is satisfied with respect to such
Restricted Subsidiary and any Equity Interests or Indebtedness of such
Restricted Subsidiary held by Alamosa Delaware, the Borrower or any
Subsidiary Loan Party and (C) Alamosa Delaware is in compliance, on a pro
forma basis after giving effect to the incurrence of such Indebtedness,
with the Financial Covenants;
(x) Guarantees by Alamosa Delaware in respect of customary
indemnification and purchase price adjustment obligations of any Restricted
Subsidiary incurred in connection with asset sales permitted by Section
6.05;
(xi) Indebtedness constituting obligations for repayments of customer
deposits received in the ordinary course of business;
(xii) (I) Capital Lease Obligations of Alamosa Delaware or any
Restricted Subsidiary (other than any Special Purpose Subsidiary) in an
aggregate amount outstanding not at any time in excess of $15,000,000 which
are entered into in connection with outsourced service provider programs
and which are attributable to lease obligations (including purchase
obligations under leases) that do not represent revenue-sharing
arrangements and are not calculated on the basis of revenues generated
through use of the assets subject to such Capital Lease Obligations and
(II) Capital Lease Obligations relating to outsourced service provider
programs giving rise to Capital Lease Obligations referred to in clause (I)
of this clause (xii) which are solely attributable to revenue-sharing
arrangements and the payments in respect of which are calculated solely on
the basis of revenues generated through the use of the assets subject to
such Capital Lease Obligations;
(xiii) Capital Lease Obligations arising from tower sale and leaseback
transactions permitted by Section 6.06; and
(xiv) Letter of credit facilities referred to in Section 6.02(a)(i).
66
(b) Superholdings will not create, incur, assume or permit to exist
any Indebtedness except (i) Indebtedness created under the Loan Documents and
(ii) Guarantees of Indebtedness of any of its subsidiaries.
(c) Superholdings will not permit APCS to create, incur, assume or
permit to exist any Indebtedness except Indebtedness created under the Loan
Documents.
(d) Neither Superholdings, Alamosa Delaware nor the Borrower will, nor
will they permit APCS or any Restricted Subsidiary to, issue any preferred stock
or other preferred Equity Interests or to become liable in respect of any
obligation (contingent or otherwise) to purchase, redeem, retire, acquire or to
make any other payment in respect of any shares of Capital Stock of
Superholdings, APCS, Alamosa Delaware, the Borrower or any Restricted Subsidiary
or any option, warrant or other right to acquire shares of Capital Stock,
except, in the case of Superholdings, pursuant to a shareholders' rights plan on
customary terms and conditions.
SECTION 6.02. Liens. (a) Alamosa Delaware will not, and will not
permit any Restricted Subsidiary to, create, incur, assume or permit to exist
any Lien on any property or asset now owned or hereafter acquired by it, or
assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:
(i) Liens created under the Loan Documents and Liens on cash
collateral securing letter of credit facilities approved by the
Administrative Agent for letters of credit securing Obligations (but not
other Indebtedness);
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of Alamosa Delaware or any
Restricted Subsidiary (other than any Special Purpose Subsidiary) existing
on the date hereof and set forth in Schedule 6.02; provided that (i) such
Lien shall not apply to any other property or asset of Alamosa Delaware or
any Restricted Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and extensions, renewals
and replacements thereof that do not increase the outstanding principal
amount thereof;
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by Alamosa Delaware or any Restricted Subsidiary or
existing on any property or asset of any Person that becomes a Restricted
Subsidiary after the date hereof prior to the time such Person becomes a
Restricted Subsidiary; provided that (A) such Lien is not created in
contemplation of or in connection with such acquisition or such Person
becoming a Restricted Subsidiary, as the case may be, (B) such Lien shall
not apply to any other property or assets of Alamosa Delaware or any
Restricted Subsidiary and (C) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes a Restricted Subsidiary, as the case may be and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(v) Liens on fixed or capital assets acquired, constructed or improved
by Alamosa Delaware or any Restricted Subsidiary, including pursuant to
Capital Lease Obligations; provided that (A) such security interests secure
Indebtedness permitted by clause (v), (xii) or (xiii) of Section 6.01(a),
(B) such security interests and the Indebtedness secured thereby are
incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement, (C) the Indebtedness
secured thereby does not exceed 100% of the cost of acquiring, constructing
or improving such fixed or capital assets and (D) such security interests
shall not apply to any other property or assets of Alamosa Delaware or any
Restricted Subsidiary;
67
(vi) Liens securing Indebtedness of any Restricted Subsidiary (other
than any Special Purpose Subsidiary) to any Subsidiary Loan Party; and
(vii) Liens attaching to the Capital Stock of Unrestricted
Subsidiaries, other than Unrestricted Subsidiaries that are direct
subsidiaries of Alamosa Delaware or any Restricted Subsidiary.
(b) Superholdings will not, nor will it permit APCS to, create, incur,
assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect thereof, except Liens created under
the Pledge Agreement and Permitted Encumbrances.
SECTION 6.03. Fundamental Changes. (a) Other than the Transactions,
neither Superholdings, Alamosa Delaware nor the Borrower will, nor will they
permit APCS or any Restricted Subsidiary to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing (i)
any Person (other than any Special Purpose Subsidiary) may merge into the
Borrower or Superholdings in a transaction in which the Borrower or
Superholdings, as the case may be, is the surviving corporation, (ii) any Person
may merge into any Restricted Subsidiary in a transaction in which the surviving
entity is a Restricted Subsidiary and (if any party to such merger is a
Subsidiary Loan Party) is a Subsidiary Loan Party and (iii) any Restricted
Subsidiary (other than the Borrower and any Special Purpose Subsidiary) may
liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; provided that any such merger
involving a Person that is not a wholly owned Restricted Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by Section
6.04; provided, further, that so long any ▇▇▇▇▇▇▇ Term Loans remain outstanding
▇▇▇▇▇▇▇ will not, so long as any WOW Term Loans remain outstanding WOW will not,
and so long as any Southwest Term Loans remain outstanding none of the Southwest
Entities will, be permitted to merge into or consolidate with any other Person
(other than, in the case of ▇▇▇▇▇▇▇, WOW or Southwest, any of its respective
subsidiaries that is not a Special Purpose Subsidiary), or permit any other
Person (other than, in the case of ▇▇▇▇▇▇▇, WOW or Southwest, any of its
respective subsidiaries that (x) is a Restricted Subsidiary and (y) is not a
Special Purpose Subsidiary) to merge into or consolidate with it, or liquidate
or dissolve.
(b) Alamosa Delaware will not (i) engage in any business or activity
other than the ownership of all the outstanding Capital Stock of the Borrower
and any Unrestricted Subsidiaries and activities incidental thereto or (ii) own
or acquire any assets (other than Capital Stock of its Subsidiaries, cash and
Permitted Investments) or incur liabilities (other than liabilities under the
Loan Documents, liabilities under the Alamosa Delaware Indentures, liabilities
imposed by law, including tax liabilities, and other liabilities incidental to
its existence and permitted business and activities).
(c) Alamosa Delaware will not permit any of its Restricted
Subsidiaries to engage to any material extent in any business other than the
Wireless Telecommunications Business.
68
(d) Superholdings will not permit APCS to engage in any business or
activity other than the ownership of all the outstanding shares of Capital Stock
of Alamosa Delaware and activities incidental thereto. Superholdings will not
permit APCS to own or acquire any assets (other than shares of Capital Stock of
Alamosa Delaware, cash and Permitted Investments) or incur liabilities (other
than liabilities under the Loan Documents, liabilities imposed by law, including
tax liabilities, and other liabilities incidental to its existence and permitted
business and activities).
(e) Superholdings will not engage in any business or activity other
than the ownership of all the outstanding Capital Stock of its subsidiaries
(including acquired subsidiaries) and activities incidental thereto.
Superholdings will not own or acquire any assets (other than Capital Stock of
its subsidiaries, cash and Permitted Investments) or incur any liabilities
(other than liabilities under the Loan Documents, Guarantees permitted by
Section 6.01(b), liabilities imposed by law, including tax liabilities, and
other liabilities incidental to its existence and permitted business and
activities).
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. Alamosa Delaware will not, and will not permit any of its
Restricted Subsidiaries to, purchase, hold or acquire any Investment,
except:
(a) the Merger Transactions;
(b) Permitted Investments;
(c) Investments existing on the date hereof and set forth on Schedule
6.04;
(d) Investments by Alamosa Delaware and its Restricted Subsidiaries
(other than any Special Purpose Subsidiary) in Equity Interests in their
respective Restricted Subsidiaries; provided that (i) any such Equity
Interests held by a Loan Party shall be pledged pursuant to the Pledge
Agreement (subject to the limitations applicable to common stock of a
Foreign Subsidiary referred to in Section 5.12) and (ii) the aggregate
amount of Investments of Loan Partes in Restricted Subsidiaries that are
not Loan Parties (including all such Investments existing on the
Restatement Effective Date and any such Investments under clause (e) or (f)
below) at any time outstanding shall not exceed the lesser of (x)
$10,000,000 and (y) $50,000,000 minus the amount of all other Permitted
Equity Proceeds Uses at such time;
(e) loans or advances made by Alamosa Delaware to any Restricted
Subsidiary and made by any Restricted Subsidiary to Alamosa Delaware or any
other Restricted Subsidiary; provided that (i) any such loans and advances
made by Alamosa Delaware, the Borrower or any Subsidiary Loan Party, to the
extent evidenced by a promissory note, shall be pledged pursuant to the
Pledge Agreement and (ii) the amount of such loans and advances made by
Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be
subject to the limitation set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01;
provided that the aggregate principal amount of Indebtedness of Restricted
Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party
shall be subject to the limitation set forth in clause (d) above;
69
(g) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(h) promissory notes and other non-cash consideration received in
connection with any asset sale to the extent permitted by Section 6.05;
(i) loans, advances or extensions of credit to employees, officers and
directors made in the ordinary course of business in an aggregate principal
amount at any time outstanding not to exceed $1,000,000;
(j) negotiable instruments held for collection and operating lease,
utility and workers' compensation, performance and other similar deposits
in the ordinary course of business;
(k) Investments in Hedging Agreements permitted by Section 6.07; and
(l) other Investments in any Person (including any Unrestricted
Subsidiary) in an aggregate amount at any time outstanding not to exceed
$50,000,000 minus the amount of all other Permitted Equity Proceeds Uses at
such time.
SECTION 6.05. Asset Sales. Alamosa Delaware will not, and will not
permit any of its Restricted Subsidiaries to, sell, transfer, lease or otherwise
dispose of any asset, including any Equity Interest owned by it, nor will
Alamosa Delaware permit any of its Restricted Subsidiaries to issue any
additional Equity Interest in such Restricted Subsidiary, except:
(a) sales of inventory, used or surplus equipment (including, without
limitation, dispositions of equipment being exchanged or replaced with
comparable or better equipment) and Permitted Investments in the ordinary
course of business;
(b) sales, transfers and dispositions to the Borrower or a Restricted
Subsidiary; provided that so long as any ▇▇▇▇▇▇▇ Term Loans remain
outstanding ▇▇▇▇▇▇▇ shall not, so long as any WOW Term Loans remain
outstanding WOW shall not, and so long as any Southwest Term Loans remain
outstanding none of the Southwest Entities will, be permitted to sell,
transfer or dispose of any asset, including any Equity Interest owned by
it, pursuant to this clause (b), except (x) ▇▇▇▇▇▇▇ may sell, transfer or
dispose of any asset, including any Equity Interest owned by it, to any of
its subsidiaries that is a Restricted Subsidiary and any such Restricted
Subsidiary may sell, transfer or dispose of any asset, including any Equity
Interest owned by it, to ▇▇▇▇▇▇▇ or any other such Restricted Subsidiary,
(y) WOW may sell, transfer or dispose of any asset, including any Equity
Interest owned by it, to any of its subsidiaries that is a Restricted
Subsidiary and any such Restricted Subsidiary may sell, transfer or dispose
of any asset, including any Equity Interest owned by it, to WOW or any
other such Restricted Subsidiary, and (z) Southwest may sell, transfer or
dispose of any asset, including any Equity Interest owned by it, to any of
its subsidiaries that is a Restricted Subsidiary and any such Restricted
Subsidiary may sell, transfer or dispose of any asset, including any Equity
Interest owned by it, to Southwest or any other such Restricted Subsidiary;
provided, further that any such sales, transfers or dispositions involving
a Restricted Subsidiary that is not a Loan Party shall be made in
compliance with Section 6.09;
(c) sales, transfers and other dispositions of any asset of, and any
Equity Interest in, any Unrestricted Subsidiary; provided that any such
sales, transfers or dispositions to Alamosa Delaware, the Borrower or any
Subsidiary Loan Party shall be made in compliance with Section 6.09;
70
(d) sales, transfers and other dispositions of assets (other than
Equity Interests in a Restricted Subsidiary) that are not permitted by any
other clause of this Section; provided that the aggregate fair market value
of all assets sold, transferred or otherwise disposed of in reliance upon
this clause (d) shall not exceed $5,000,000 during any fiscal year of
Alamosa Delaware; and
(e) sales of towers in sale and leaseback transactions permitted by
Section 6.06;
provided that all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted by clause (b) above or exchanges of
equipment) shall be made for fair value and at least 75% cash consideration or,
in the case of sales pursuant to clause (e) above, 100% cash consideration.
SECTION 6.06. Sale and Leaseback Transactions. Alamosa Delaware will
not, and will not permit any of its Restricted Subsidiaries to, enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereinafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred; provided, however, that Alamosa Delaware
and its Restricted Subsidiaries may sell tower properties acquired or
constructed by them for aggregate cumulative cash consideration not in excess of
$15,000,000 and enter into leases for such tower properties providing for
aggregate rental payments (in respect of all such leases) not in excess of
$2,000,000 in any fiscal year; provided further that such sales are made for
fair market value and solely for cash, such leases are entered into
substantially simultaneously with such sales and the Net Proceeds of such sales
shall be subject to the provisions of Section 2.10(c).
SECTION 6.07. Hedging Agreements. Alamosa Delaware will not, and will
not permit any of its Restricted Subsidiaries to, enter into any Hedging
Agreement, other than (a) Hedging Agreements required by Section 5.14 and (b)
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which Alamosa Delaware or any Restricted Subsidiary is exposed
in the conduct of its business or the management of its liabilities.
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.
(a) Neither Alamosa Delaware nor the Borrower will, nor will they permit any
Restricted Subsidiary to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except (i) Alamosa Delaware may declare and pay dividends
with respect to its capital stock payable solely in additional shares of its
common stock, (ii) Restricted Subsidiaries (other than the Borrower) may declare
and pay dividends ratably with respect to their Capital Stock; provided, that no
distribution referred to in this clause (ii) shall be permitted to be made by
any Special Purpose Subsidiary unless such distribution is in cash or in shares
of its common Capital Stock pledged under the Pledge Agreement and no Default or
Event of Default shall have occurred and be continuing or would result
therefrom, (iii) Alamosa Delaware may make Restricted Payments, not exceeding
$1,000,000 during any fiscal year pursuant to and in accordance with stock
option plans or other benefit plans for directors, management or employees of
Alamosa Delaware and its Restricted Subsidiaries, (iv) at a time, in the case of
both (x) and (y) below, when there does not exist a Default (or such
distribution would not cause a Default), the Borrower may make distributions to
Alamosa Delaware for the sole purpose of, and in an amount sufficient to fund,
the payment of (x) principal at scheduled maturity and (y) interest when due as
scheduled, in each case in respect of the 12 7/8% Senior Discount Notes and the
12 1/2% Senior Notes; provided, in the case of both (x) and (y), that such
payment is due or to become due within 30 days from the date of such
distribution and the cash distributed is in fact utilized to meet such payment
obligation, (v) if no Default has occurred and is continuing, the Borrower may
pay dividends to Alamosa Delaware and Alamosa Delaware may pay dividends, in
each case at such times and in such amounts, not exceeding the lesser of (A)
$1,000,000 and (B) $50,000,000 minus the amount of all other Permitted Equity
Proceeds Uses at such time, during any fiscal year as shall be necessary to
permit each of Alamosa Delaware, APCS and Superholdings to discharge its
permitted liabilities, (vi) if no Default has occurred and is continuing,
Alamosa Delaware, the Borrower and the other Restricted Subsidiaries may make
Restricted Payments in an aggregate amount not to exceed $50,000,000 minus the
amount of all other Permitted Equity Proceeds Uses at such time and (vii)
Restricted Payments may be made on the Restatement Effective Date as necessary
to consummate the Southwest Transactions.
71
(b) Neither Alamosa Delaware nor the Borrower will, nor will they
permit any Restricted Subsidiary to, make or agree to pay or make, directly or
indirectly, any payment or other distribution (whether in cash, securities or
other property) of or in respect of principal of or interest on any
Indebtedness, or any payment or other distribution (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancelation or termination of
any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments
not more than 30 days prior to the date on which such payments become due
in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section
6.01;
(iv) payment of secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness;
(v) the exchange, in a registered public offering, for the 12 1/2%
Senior Notes of senior notes of Alamosa Delaware in an equivalent principal
amount having the same terms and conditions as the 12 1/2% Senior Notes;
(vi) payment of intercompany Indebtedness (A) among the Borrower and
the Subsidiary Loan Parties, (B) by Alamosa Delaware to the Borrower or any
Subsidiary Loan Party and (C) if no Default or Event of Default has
occurred and is continuing, by the Borrower or any Subsidiary Loan Party to
Alamosa Delaware; and
(vii) payment of Indebtedness under any Hedging Agreements permitted
under Section 6.07 in connection with the termination (including early
termination) of such Hedging Agreements in the ordinary course of business.
SECTION 6.09. Transactions with Affiliates. Neither Alamosa Delaware
nor the Borrower will, nor will they permit any Restricted Subsidiary to, sell,
lease or otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions in the
ordinary course of business that are at prices and on terms and conditions not
less favorable to Alamosa Delaware or such Restricted Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties, (b) transactions
between or among the Borrower and the Subsidiary Loan Parties not involving any
other Affiliate, (c) transactions with Unrestricted Subsidiaries permitted by
Section 6.04 and (d) any Restricted Payment permitted by Section 6.08.
72
SECTION 6.10. Restrictive Agreements. Neither Superholdings, Alamosa
Delaware nor the Borrower will, nor will they permit APCS or any Restricted
Subsidiary to, directly or indirectly, enter into, incur or permit to exist any
agreement or other arrangement that prohibits, restricts or imposes any
condition upon (a) the ability of Alamosa Delaware, the Borrower or any
Restricted Subsidiary to create, incur or permit to exist any Lien upon any of
its property or assets, or (b) the ability of any Restricted Subsidiary to pay
dividends or other distributions with respect to any shares of its capital stock
or to make or repay loans or advances to the Borrower or any other Restricted
Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by any Loan Document, (ii) the foregoing shall not
apply to restrictions and conditions (A) existing on the date hereof identified
on Schedule 6.10 (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such restriction or
condition) or (B) under the 12 7/8% Senior Discount Notes Indenture or the
12 1/2% Senior Notes Indenture or any amendment, modification, refinancing or
replacement thereof, provided that any such amendment, modification, refinancing
or replacement shall not expand the scope of, or other amend or modify such
restriction or condition in any manner that is less favorable to the Lenders
than such restriction or condition as in effect on the date hereof, (iii) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Restricted Subsidiary pending such sale,
provided such restrictions and conditions apply only to the Restricted
Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause
(a) of the foregoing shall not apply to restrictions or conditions imposed by
any agreement relating to secured Indebtedness permitted by this Agreement if
such restrictions or conditions apply only to the property or assets securing
such Indebtedness and (v) clause (a) of the foregoing shall not apply to
customary provisions in leases and other contracts restricting the assignment
thereof.
SECTION 6.11. Amendment of Material Documents. Neither Alamosa
Delaware nor the Borrower will, nor will they permit any Restricted Subsidiary
to, amend, modify or waive any of its rights under (a) any agreement relating to
Material Indebtedness, (b) its certificate of incorporation, by-laws or other
organizational documents or (c) the Sprint Agreements or the Consent and
Agreement, in each case in any manner that adversely affects the rights of the
Lenders hereunder or under the Security Documents.
SECTION 6.12. Certain Financial Covenants. (a) Subscribers.
Alamosa Delaware will not permit the number of Subscribers on any date set
forth below to be less than the number of Subscribers set forth opposite
such date:
Date Minimum Subscribers
---- -------------------
March 31, 2001 163,150
June 30, 2001 261,700
September 30, 2001 318,400
December 31, 2001 396,500
March 31, 2002 435,200
June 30, 2002 484,800
(b) Covered Pops. Alamosa Delaware will not permit the number of
Covered Pops in the Service Regions on any date set forth below to be less than
the Covered Pops set forth opposite such date:
Date Minimum Covered Pops
---- --------------------
March 31, 2001 6,800,000
June 30, 2001 9,400,000
September 30, 2001 9,700,000
December 31, 2001 9,800,000
March 31, 2002 9,900,000
June 30, 2002 9,900,000
(c) Aggregate Service Revenue. Alamosa Delaware will not permit
Aggregate Service Revenue for any fiscal quarter ending on any date set forth
below to be less than the Aggregate Service Revenue set forth opposite such
date:
73
Minimum Aggregate
Date Service Revenue
---- --------------------
March 31, 2001 $30,190,000
June 30, 2001 $48,000,000
September 30, 2001 $57,000,000
December 31, 2001 $68,100,000
March 31, 2002 $83,400,000
June 30, 2002 $90,700,000
(d) Consolidated EBITDA. (i) Alamosa Delaware will not permit
Consolidated EBITDA losses for any fiscal quarter ending on or before December
31, 2001 to be greater than the number set forth opposite such quarter:
Period Maximum EBITDA Losses
------ ---------------------
January 1, 2001 through March 31, 2001 $9,630,000
April 1, 2001 through June 30, 2001 $14,895,000
July 1, 2001 through September 30, 2001 $11,525,000
October 1, 2001 through December 31, 2001 $13,310,000
(ii) Alamosa Delaware will not permit Consolidated EBITDA for any fiscal quarter
ending on or after March 31, 2002 to be less than the number set forth opposite
such period:
Period Minimum EBITDA
------ --------------
January 1, 2002 through March 31, 2002 $13,575,000
April 1, 2002 through June 30, 2002 $16,110,000
(e) Senior Borrower Debt to Total Borrower Capital. The Borrower will
not permit the ratio of Senior Borrower Debt to Total Borrower Capital as of the
last day of any fiscal quarter ending on or prior to June 30, 2002 to exceed
0.35 to 1.00.
(f) Total Indebtedness to Total Capital. Alamosa Delaware will not
permit the ratio of Total Indebtedness to Total Capital as of the last day of
any fiscal quarter ending on or prior to June 30, 2002 to exceed 0.77 to 1.00.
74
(g) Capital Expenditures. Alamosa Delaware will not permit the
aggregate cumulative amount of Capital Expenditures of Alamosa Delaware and its
Restricted Subsidiaries (excluding Capital Expenditures paid with Net Proceeds
in respect of Prepayment Events described in clause (a) or (b) of the definition
thereof) from January 1, 2001, through any date set forth below to exceed the
amount set forth opposite such date:
Period Amount
------ ------
March 31, 2001 $103,400,000
June 30, 2001 $141,200,000
September 30, 2001 $172,500,000
December 31, 2001 $192,800,000
March 31, 2002 $236,400,000
June 30, 2002 $262,700,000
September 30, 2002 $280,300,000
December 31, 2002 $298,000,000
(h) Senior Leverage Ratio. Alamosa Delaware will not permit the Senior
Leverage Ratio as of any date during the period set forth below to exceed the
ratio set forth opposite such period:
Period Ratio
------ ------
July 1, 2002 through
September 30, 2002 4.50 to 1.00
October 1, 2002 through
December 31, 2002 4.00 to 1.00
January 1, 2003 through
March 31, 2003 3.00 to 1.00
April 1, 2003 through
December 31, 2003 2.50 to 1.00
January 1, 2004 and
thereafter 2.00 to 1.00
(i) Leverage Ratio. Alamosa Delaware will not permit the Leverage
Ratio as of any date during any period set forth below to exceed the ratio set
forth opposite such period:
Period Ratio
------ ------
July 1, 2002 through September 30, 2002 11.25 to 1.00
October 1, 2002 through December 31, 2002 10.25 to 1.00
January 1, 2003 through March 31, 2003 7.50 to 1.00
April 1, 2003 through June 30, 2003 5.75 to 1.00
July 1, 2003 through December 31, 2003 5.50 to 1.00
January 1, 2004 through December 31, 2004 5.00 to 1.00
January 1, 2005 and thereafter 4.00 to 1.00
(j) Fixed Charges Ratio. Alamosa Delaware will not permit the ratio of
(i) Annualized EBITDA to (ii) Consolidated Fixed Charges for any period of four
consecutive fiscal quarters ending on or after March 31, 2003 to be less than
1.10 to 1.00.
75
(k) Interest Expense Coverage Ratio. Alamosa Delaware will not permit
the ratio of (a) Annualized EBITDA to (b) Consolidated Cash Interest Expense for
any period of four consecutive fiscal quarters ending on any date during any
period set forth below, to be less than the ratio set forth below opposite such
period:
Period Ratio
------ ------
July 1, 2002 through December 31, 2003 2.50 to 1.00
January 1, 2004 through March 31, 2004 2.75 to 1.00
April 1, 2004 and thereafter 3.00 to 1.00
(l) Pro Forma Debt Service. Alamosa Delaware will not permit the ratio
of (i) Annualized EBITDA for any fiscal quarter ending on any date during any
period set forth below to (ii) Pro Forma Debt Service as of the last day of such
fiscal quarter to be less than ratio set forth below opposite such period:
Period Ratio
------ ------
July 1, 2002 through December 31, 2002 1.25 to 1.00
January 1, 2003 through March 31, 2005 1.30 to 1.00
April 1, 2005 and thereafter 1.50 to 1.00
SECTION 6.13. Liabilities of Special Purpose Subsidiaries.
Alamosa Delaware will not:
(a) permit any License Subsidiary to incur, assume or permit to exist
any liabilities (other than under the Guarantee Agreement and the Security
Agreement, its Guarantees under the Alamosa Delaware Indentures, the
Communications Act and taxes and other liabilities incurred in the ordinary
course in order to maintain its existence and preserve the Licenses) or to
engage in any business or activities other than the holding of Licenses; or
(b) permit any Real Property Subsidiary to incur, assume or permit to
exist any liabilities (other than (i) under the Guarantee Agreement and the
Security Agreement, (ii) its subordinated Guarantees under the Alamosa
Delaware Indentures, (iii) other liabilities incurred in the ordinary
course of business which are incident to being the lessee of real property
or the purchaser, owner or lessee of equipment and (iv) taxes and other
liabilities in the ordinary course in order to maintain its existence) or
to engage in any business or activities other than the owning or leasing,
as lessee, of Real Property Assets and the leasing, as lessor, or, as the
case may be, subleasing, as sublessor, thereof to the Borrower, and the
owning of Real Property-Related Equipment constituting fixtures thereto and
the leasing thereof to the Borrower.
SECTION 6.14. Designation of Unrestricted Subsidiaries. (a)
Alamosa Delaware may not designate any Restricted Subsidiary as an
Unrestricted Subsidiary and may hereafter designate any other Subsidiary as
an Unrestricted Subsidiary under this Agreement (a "Designation") only if:
76
(i) such Subsidiary does not own any Capital Stock of any
Restricted Subsidiary;
(ii) no Event of Default shall have occurred and be continuing at the
time of or after giving effect to such Designation;
(iii) after giving effect to such Designation and any related
Investment to be made in such designated Subsidiary by Alamosa Delaware or
any Restricted Subsidiary (which shall in any event include the existing
Investment in such Subsidiary at the time it is designated as an
Unrestricted Subsidiary), (A) any such existing Investment and related
Investment would comply with Section 6.04 and (B) Alamosa Delaware and the
Restricted Subsidiaries would be in compliance with each of the Financial
Covenants, calculated on a pro forma basis as if such Designation and
Investment had occurred immediately prior to the first day of the period of
four consecutive fiscal quarters most recently ended in respect of which
financial statements have been delivered by Alamosa Delaware pursuant to
Section 5.01(a) or (b);
(iv) such designated Subsidiary is an unrestricted subsidiary under
each of the Alamosa Delaware Indentures; and
(v) Alamosa Delaware has delivered to the Administrative Agent (x)
written notice of such Designation and (y) a certificate, dated the
effective date of such Designation, of a Financial Officer of Alamosa
Delaware stating that no Event of Default has occurred and is continuing
and setting forth reasonably detailed calculations demonstrating pro forma
compliance with the Financial Covenants in accordance with paragraph (iii)
above.
(b) Neither Superholdings, APCS, Alamosa Delaware nor any Restricted
Subsidiary shall at any time (x) provide a Guarantee of any Indebtedness of any
Unrestricted Subsidiary, (y) be directly or indirectly liable for any
Indebtedness of any Unrestricted Subsidiary or (z) be directly or indirectly
liable for any other Indebtedness which provides that the holder thereof may
(upon notice, lapse of time or both) declare a default thereon (or cause such
Indebtedness or the payment thereof to be accelerated, payable or subject to
repurchase prior to its final scheduled maturity) upon the occurrence of a
default with respect to any other Indebtedness that is Indebtedness of an
Unrestricted Subsidiary, except in the case of clause (x) or (y) to the extent
permitted under Section 6.01 and 6.04 hereof. Each Designation shall be
irrevocable, and no Unrestricted Subsidiary may become a Restricted Subsidiary,
be merged with or into Alamosa Delaware or any Restricted Subsidiary or
liquidate into or transfer substantially all its assets to Alamosa Delaware or
any Restricted Subsidiary.
77
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of Superholdings, APCS, Alamosa Delaware, the Borrower or any Restricted
Subsidiary in or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in
connection with any Loan Document or any amendment or modification thereof
or waiver thereunder, shall prove to have been incorrect in any material
respect when made or deemed made;
(d) Superholdings, Alamosa Delaware or the Borrower shall fail to
observe or perform any covenant, condition or agreement contained in
Section 5.02, 5.04 (with respect to the existence of Superholdings, APCS,
Alamosa Delaware or the Borrower), 5.11 or 5.15 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article and other than with
respect to Section 5.10 as it applies to the Sprint Agreements, which are
covered by clause (o) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);
78
(f) Superholdings, APCS, Alamosa Delaware, the Borrower or any
Restricted Subsidiary shall fail to make any payment (whether of principal
or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable (after
giving effect to any applicable grace periods provided for in the
instrument governing such Indebtedness);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)
shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of Superholdings, APCS, Alamosa Delaware, the Borrower or
any Restricted Subsidiary or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for Superholdings, APCS, Alamosa Delaware, the Borrower or
any Restricted Subsidiary or for a substantial part of its assets, and, in
any such case, such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) Superholdings, APCS, Alamosa Delaware, the Borrower or any
Restricted Subsidiary shall (i) voluntarily commence any proceeding or file
any petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for Superholdings, APCS, Alamosa Delaware, the Borrower or
any Restricted Subsidiary or for a substantial part of its assets, (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting
any of the foregoing;
(j) Superholdings, APCS, Alamosa Delaware, the Borrower or any
Restricted Subsidiary shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due;
79
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 (to the extent not covered by insurance)
shall be rendered against Superholdings, APCS, Alamosa Delaware, the
Borrower, any Restricted Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 60 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of
Superholdings, APCS, Alamosa Delaware, the Borrower or any Restricted
Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect;
(m) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on any Collateral, with the priority required by the
applicable Security Document, except (i) as a result of the sale or other
disposition of the applicable Collateral in a transaction permitted under
the Loan Documents or (ii) as a result of the Administrative Agent's
failure to maintain possession of any stock certificates, promissory notes
or other instruments delivered to it under the Pledge Agreement; or the
Guarantee Agreement shall cease to be, or shall be asserted by any Loan
Party not to be, valid and enforceable;
(n) a Change in Control shall occur;
(o) the termination of any Sprint Agreement, or the occurrence and
continuation of (i) any "Event of Termination" as defined in any Sprint
Agreement or (ii) any breach or default under the Consent and Agreement
(other than a breach or default by the Administrative Agent) which breach
or default entitles the Administrative Agent to exercise a right or remedy
under or in connection with the Consent and Agreement;
(p) the loss by any Loan Party of any rights to the benefit of, or the
occurrence of any default or the termination of any rights under, in each
case after giving effect to any grace or cure period with respect thereto,
any application, marketing or other material agreements (other than the
Sprint Agreements and the Consent and Agreement), which loss, occurrence or
termination could reasonably be expected to result in a Material Adverse
Effect;
80
(q) the failure by Alamosa Delaware to make any payments required to
be made with the FCC or any other Governmental Authority with respect to
any License held by Alamosa Delaware or any Restricted Subsidiary or any
Indebtedness or other payment obligations relating thereto as when due
which failure could reasonably be expected to lead to the loss,
termination, revocation, non-renewal or material impairment of any License
(other than any immaterial Licenses) or otherwise result in a Material
Adverse Effect; or
(r) any termination (prior to the expiration of its term), revocation
or non-renewal by the FCC of one or more Licenses (other than any
immaterial Licenses) of Alamosa Delaware or its Restricted Subsidiaries,
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
81
ARTICLE VIII
The Administrative Agent
------------------------
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with Superholdings, APCS, Alamosa Delaware, the Borrower
or any Subsidiary or other Affiliate thereof as if it were not the
Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02), and (c) except as
expressly set forth in the Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to Superholdings, APCS, Alamosa Delaware, the Borrower
or any of the Restricted Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or wilful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default unless and until written notice thereof is given
to the Administrative Agent by Superholdings, Alamosa Delaware, the Borrower or
a Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other than
to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
82
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor the
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub- agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
83
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to Superholdings, Alamosa Delaware or the Borrower, to it at
Alamosa Holdings, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, Attention of Chief Financial Officer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
and
(b) if to the Administrative Agent, to Citicorp USA, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇
▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to the Issuing Bank, to it at Citicorp USA, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇
▇▇▇▇ (Telecopy No. (302) 894- 6120);
(d) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire. Any party hereto may change
its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of
receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of any Loan Document or consent to any departure by
any Loan Party therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time.
84
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Superholdings, Alamosa Delaware, the Borrower and the Required
Lenders or, in the case of any other Loan Document, pursuant to an agreement or
agreements in writing entered into by the Administrative Agent and the Loan
Party or Loan Parties that are parties thereto, in each case with the consent of
the Required Lenders; provided that no such agreement shall (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii) reduce
the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the maturity of any
Loan, or any scheduled date of payment of the principal amount of any Term Loan
under Section 2.09, or the required date of reimbursement of any LC
Disbursement, or any date for the payment of any interest or fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment or the scheduled
date of any reduction of any Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.17(b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) change any of the provisions of this Section
or the percentage set forth in the definition of "Required Lenders" or any other
provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender (or each Lender of such Class, as the case
may be), (vi) release Superholdings, APCS, Alamosa Delaware or any Subsidiary
Loan Party from its Guarantee under the Guarantee Agreement (except as expressly
provided in the Guarantee Agreement), or limit its liability in respect of such
Guarantee, without the written consent of each Lender, (vii) release all or any
material portion of the Collateral from the Liens of the Security Documents
(except as expressly provided in the Security Documents), without the written
consent of each Lender, (viii) change the permitted uses of proceeds set forth
in Section 5.11 or (ix) change any provisions of any Loan Document in a manner
that by its terms adversely affects the rights in respect of payments due to
Lenders holding Loans of any Class differently than those holding Loans of any
other Class, without the written consent of Lenders holding a majority in
interest of the outstanding Loans and unused Commitments of each affected Class;
provided further that (A) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent or the Issuing Bank
without the prior written consent of the Administrative Agent or the Issuing
Bank, as the case may be, and (B) any waiver, amendment or modification of this
Agreement that by its terms affects the rights or duties under this Agreement of
the Revolving Lenders (but not the Term Lenders) or the Term Lenders (but not
the Revolving Lenders) may be effected by an agreement or agreements in writing
entered into by Superholdings, Alamosa Delaware, the Borrower and requisite
percentage in interest of the affected Class of Lenders that would be required
to consent thereto under this Section if such Class of Lenders were the only
Class of Lenders hereunder at the time. Notwithstanding the foregoing, any
provision of this Agreement may be amended by an agreement in writing entered
into by Superholdings, Alamosa Delaware, the Borrower, the Required Lenders and
the Administrative Agent (and, if its rights or obligations are affected
thereby, the Issuing Bank) if (i) by the terms of such agreement the Commitment
of each Lender not consenting to the amendment provided for therein shall
terminate upon the effectiveness of such amendment and (ii) at the time such
amendment becomes effective, each Lender not consenting thereto receives payment
in full of the principal of and interest accrued on each Loan made by it and all
other amounts owing to it or accrued for its account under this Agreement.
85
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Syndication Agent, the Documentation Agent, the Co-
Documentation Agent and their respective Affiliates, including the reasonable
fees, charges and disbursements of counsel for the Administrative Agent, the
Syndication Agent, the Documentation Agent and the Co-Documentation Agent, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, the Syndication Agent, the
Documentation Agent, the Co-Documentation Agent, the Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Syndication Agent, the Documentation Agent, the Co-
Documentation Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out- of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Syndication Agent, the Documentation Agent, the Co-Documentation Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of any
Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any Mortgaged Property or any other property currently or formerly
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent, the Syndication Agent, the
Documentation Agent, the Co-Documentation Agent or the Issuing Bank under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Co-Documentation Agent or the Issuing Bank as the case may be, such Lender's pro
rata share (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Co-Documentation Agent or the Issuing Bank in its capacity as such. For purposes
hereof, a Lender's "pro rata share" shall be determined based upon its share of
the sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at the time.
86
(d) To the extent permitted by applicable law, neither Superholdings,
Alamosa Delaware nor the Borrower shall assert, and each hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Co-Documentation Agent, the Issuing Bank and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); provided that (i) except
in the case of an assignment to a Lender or an Affiliate of a Lender, each of
the Borrower and the Administrative Agent (and, in the case of an assignment of
all or a portion of a Revolving Commitment or any Lender's obligations in
respect of its LC Exposure and the Issuing Bank) must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a
Lender, the amount of the Commitment or Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $1,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, except that this clause (iii) shall not be
construed to prohibit the assignment of a proportionate part of all the
assigning Lender's rights and obligations in respect of one Class of Commitments
or Loans, or the assignment of outstanding Term Loans of a Lender without the
proportionate assignment of then-existing undrawn Term Commitments of such
Lender, provided that the aggregate amount of such assignments of outstanding
Term Loans prior to the termination of the Term Commitments shall not exceed
$125,000,000, (iv) any assignment of Term Loans hereunder shall include a pro
rata assignment of ▇▇▇▇▇▇▇ Term Loans, WOW Terms Loans and Southwest Term Loans,
(v) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (vi) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event of Default has
occurred and is continuing. Subject to acceptance and recording thereof pursuant
to paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
87
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and Superholdings, Alamosa Delaware, the
Borrower, the Administrative Agent, the Issuing Bank and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower,
the Issuing Bank and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) Superholdings, Alamosa Delaware, the Borrower, the
Administrative Agent, the Syndication Agent, the Documentation Agent, the Co-
Documentation Agent, the Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.14,
2.15 and 2.16 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 9.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.17(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.14 or 2.16 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.16 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.16(e) as
though it were a Lender.
88
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the
Syndication Agent, the Documentation Agent, the Co-Documentation Agent, the
Issuing Bank or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the other
Loan Documents and any separate letter agreements with respect to fees payable
to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
89
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (A) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
(b) Each of Superholdings, Alamosa Delaware and the Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to any Loan Document, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to
the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Co- Documentation Agent, the Issuing Bank or
any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against Superholdings, Alamosa Delaware,
the Borrower or its properties in the courts of any jurisdiction.
(c) Each of Superholdings, Alamosa Delaware and the Borrower hereby
irrevocably and unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement or any other Loan Document in any court referred to in paragraph
(b) of this Section. Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
90
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Syndication Agent, the Documentation Agent, the Co-Documentation Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement, (g) with the consent of
the Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, the Syndication Agent, the Documentation
Agent, the Co-Documentation Agent, the Issuing Bank or any Lender on a
nonconfidential basis from a source other than Superholdings, Alamosa Delaware
or the Borrower. For the purposes of this Section, "Information" means all
information received from Superholdings, Alamosa Delaware or the Borrower
relating to Superholdings, Alamosa Delaware or the Borrower or its business,
other than any such information that is available to the Administrative Agent,
the Syndication Agent, the Documentation Agent, the Co- Documentation Agent, the
Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by
Superholdings, Alamosa Delaware or the Borrower; provided that, in the case of
information received from Superholdings, Alamosa Delaware or the Borrower after
the date hereof, such information is clearly identified at the time of delivery
as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. Release of Subsidiaries. (a) If (i) the Administrative
Agent receives a certificate from the chief executive officer, the chief
financial officer or treasurer of Alamosa Delaware certifying as of the date of
that certificate that, after the consummation of the transaction or series of
transactions described in reasonable detail satisfactory to the Administrative
Agent in such certificate on such date, the Subsidiary Loan Party identified in
such certificate will no longer be a Subsidiary of Alamosa Delaware and (ii)
such transactions are consummated on such date in accordance with and without
violating the provisions of this Agreement or any other Loan Document, then such
Subsidiary's Guarantee shall automatically terminate and such Subsidiary shall
cease to be a party to any Loan Document.
(b) No such termination or cessation shall release, reduce, or
otherwise adversely affect the obligations of any other Loan Party under this
Agreement, any other Guarantee, or any other Loan Document, all of which
obligations continue to remain in full force and effect. (c) The Lenders shall,
at Alamosa Delaware's expense, execute such documents as Alamosa Delaware may
reasonably request to evidence such termination or cessation, as the case may
be.
91
SECTION 9.15. ▇▇▇▇▇▇▇ Term Loans, WOW Term Loans and Southwest Term
Loans. Notwithstanding anything to the contrary herein contained, it is
recognized and agreed by the parties hereto that the credit accommodations being
provided hereunder are being set forth in the form of a single Credit Agreement
for convenience only and that the ▇▇▇▇▇▇▇ Term Loans in an aggregate principal
amount up to $20,000,000 which refinance a portion of the Existing ▇▇▇▇▇▇▇
Indebtedness, the WOW Term Loans in an aggregate principal amount up to
$10,000,000 which refinance a portion of the Existing WOW Indebtedness and the
Southwest Term Loans in an aggregate principal amount up to $53,000,000 which
refinance the Existing Southwest Indebtedness are being considered by the
parties hereto as separately identifiable term loans which as stated above are
included in this Agreement for convenience only.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
ALAMOSA HOLDINGS, INC.,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
ALAMOSA (DELAWARE), INC.,
by:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
by:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
ALAMOSA HOLDINGS, LLC,
by:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
CITICORP USA, INC.,
individually and as
Administrative Agent,
by:
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: VP & Managing Director
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.,
by:
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: VP & Managing Director
TORONTO DOMINION (TEXAS),
INC., individually and as
Syndication Agent,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
EXPORT DEVELOPMENT
CORPORATION, individually and
as Co-Documentation Agent,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Financial Services Manager
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Financial Services Manager
FIRST UNION NATIONAL BANK,
individually and as
Documentation Agent,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Asst. Vice President
THE BANK OF NOVA SCOTIA,
by
/s/ P.A. ▇▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: P.A. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
COBANK, ACB,
by
//s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
93
FORTIS CAPITAL CORP.,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
by
/s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Asst. Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Manager-Operations
SOCIETE GENERALE,
by
/s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
94
FRANKLIN FLOATING RATE TRUST,
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
IBM CREDIT CORPORATION,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager, Commercial
& Vendor Financing Sales Americas
FRANKLIN FLOATING RATE MASTER SERIES,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager, Commercial
& Vendor Financing Sales
Americas
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇▇▇▇ SENIOR FLOATING RATE FUND,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
95
FIRST AMENDMENT AND WAIVER dated as of May 8,
2001 (this "Amendment"), to the Amended and Restated Credit Agreement,
dated as of February 14, 2001, as amended and restated as of March 30,
2001 (the "Credit Agreement"), among ALAMOSA HOLDINGS, INC.
("Superholdings"), among ALAMOSA (DELAWARE), INC. ("Alamosa
Delaware"), ALAMOSA HOLDINGS, LLC (the "Borrower" and, together with
Superholdings and Alamosa Delaware, the "Alamosa Parties"), the
Lenders party thereto (the "Lenders"), EXPORT DEVELOPMENT CORPORATION,
as Co-Documentation Agent, FIRST UNION NATIONAL BANK, as Documentation
Agent, TORONTO DOMINION (TEXAS), INC., as Syndication Agent, and
CITICORP USA, INC., as Administrative Agent and Collateral Agent (the
"Agent").
WHEREAS the Alamosa Parties have requested that certain provisions of
the Credit Agreement be amended and that certain provisions of the Credit
Agreement be waived, in the manner provided for in this Amendment, and the
Lenders are willing to agree to such amendments and waiver on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used and not defined herein shall
have the meanings given to them in the Credit Agreement, as amended hereby.
2. Amendment and Waiver. (a) Article V of the Credit Agreement is
hereby amended by adding a new Section 5.16 as follows:
"SECTION 5.16. Delivery of Revised Business Plans. Within 30 days
after the effective date of the First Amendment and Waiver to this
Agreement, dated as of May 8, 2001, among the Alamosa Parties and the
Required Lenders, Alamosa Delaware shall deliver to the Lenders an 8-year
business plan of each of Alamosa Delaware and the Borrower, in form and
substance satisfactory to the Required Lenders."
(b) The Lenders hereby expressly waive any Defaults or Events of
Default arising from, and any rights or remedies in connection with, any breach
by the Alamosa Parties of, or failure by the Alamosa Parties to comply with,
Section 6.12(d)(i) of the Credit Agreement with
2
respect to the fiscal quarter ending March 31, 2001; provided, however, Alamosa
Delaware will not, and will not permit its Restricted Subsidiaries to, (i) make
any Investments in or any loans or advances to, or provide Guarantees of
Indebtedness of, any Restricted Subsidiary that is not a Loan Party pursuant to
Section 6.04(d)(ii), (e), (f) or (l) or (ii) make any Restricted Payments
pursuant to Section 6.08(a)(vi).
3. Effect of Amendment and Waiver. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights or remedies of the
Lenders, the Collateral Agent, the Syndication Agent, the Co-Documentation
Agent, the Documentation Agent or the Administrative Agent under the Credit
Agreement, as amended by this Amendment, or any other Loan Amendment, and shall
not alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement, as
amended by this Amendment, or any other Loan Document, all of which are ratified
and affirmed in all respects and shall continue in full force and effect.
Nothing herein shall be deemed to entitle the Alamosa Parties to a consent to,
or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement, as amended by this Amendment, or any other Loan Document in similar
or different circumstances. This Amendment shall apply and be effective only
with respect to the provisions of the Credit Agreement set forth herein. After
the date hereof, any reference to the Credit Agreement shall mean the Credit
Agreement as modified hereby. This Amendment shall constitute a "Loan Document"
for all purposes of the Credit Agreement and the other Loan Documents.
4. Representations and Warranties. Each of the Alamosa Parties hereby
represents and warrants to the Agent and the Lenders as of the date hereof as
follows:
(a) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing.
(b) The execution, delivery and performance by the Alamosa Parties of
this Amendment have been duly authorized by all necessary corporate and other
action and do not and will not require any registration with, consent or
approval of, notice to or action by, any person (including any governmental
agency) in order to be effective
3
and enforceable. The Credit Agreement as amended by this Amendment constitutes
the legal, valid and binding obligation of each of the Alamosa Parties,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
(c) All representations and warranties of the Alamosa Parties contained
in the Credit Agreement (other than representations or warranties expressly made
only on and as of the Restatement Effective Date) are true and correct in all
material respects as of the date hereof.
5. Effectiveness. This Amendment shall become effective only upon
satisfaction of the following conditions prior to 10:00 a.m., New York time, on
May 9, 2001:
(i) the Agent shall have received counterparts hereof duly executed
and delivered by the Alamosa Parties and the Required Lenders; and
(ii) the Borrower shall have paid an amendment fee to each Lender that
has delivered an executed counterpart of this Amendment to the Agent by
12:00 p.m., New York time, on May 8, 2001, equal to .125% of the aggregate
amount of such Lender's Term Loans, Revolving Exposure and unutilized
Commitments at such time (such payment to be made by wire transfer of
immediately available funds to the Agent for the respective accounts of
such Lenders).
6. Expenses. The Alamosa Parties, jointly and severally, agree to
reimburse the Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & ▇▇▇▇▇, counsel for the Agent.
4
7. GOVERNING LAW; COUNTERPARTS. (a) THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which together
shall constitute a single instrument. Delivery of an executed counterpart of a
signature page of this Amendment by facsimile transmission shall be as effective
as delivery of a manually executed counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
ALAMOSA HOLDINGS, INC.,
by
-------------------------------
Name:
Title:
ALAMOSA (DELAWARE), INC.,
by
-------------------------------
Name:
Title:
ALAMOSA HOLDINGS, LLC,
by
-------------------------------
Name:
Title:
CITICORP USA, INC., individually and
as Administrative Agent,
by
-------------------------------
Name:
Title:
5
CITICORP NORTH AMERICA, INC.,
by
-------------------------------
Name:
Title:
SIGNATURE PAGE to
FIRST AMENDMENT AND WAIVER,
dated as of May 8, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the First Amendment and Waiver:
Name of Institution:
-------------------------------
by
-------------------------------
Name:
Title: