Exhibit 10.25
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Execution Copy
AMENDED AND RESTATED PLEDGE AGREEMENT dated as of
February 14, 2001 (this "Agreement"), as amended and
restated as of March 30, 2001, among Alamosa
(Delaware), Inc., a Delaware corporation ("Alamosa
Delaware"), Alamosa Holdings, LLC, a Delaware limited
liability company (the "Borrower"), each Subsidiary
of Alamosa Delaware listed on Schedule I hereto (each
such Subsidiary individually a "Subsidiary Pledgor"
and collectively, the "Subsidiary Pledgors"; the
Borrower, Alamosa Delaware and the Subsidiary
Pledgors are referred to collectively herein as the
"Pledgors") and Citicorp USA, Inc., a New York
banking corporation ("Citicorp"), as collateral agent
(in such capacity, the "Collateral Agent") for the
Secured Parties (as defined in the Credit Agreement
referred to below).
Reference is made to (a) the Amended and Restated Credit Agreement dated
as of February 14, 2001, as amended and restated as of March 30, 2001 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Alamosa Holdings, Inc. ("Superholdings"), Alamosa Delaware,
the Borrower, the lenders from time to time 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, as administrative agent for the Lenders, Collateral Agent
and issuing bank (in such capacity, the "Issuing Bank"), (b) the Amended and
Restated Guarantee Agreement dated as of February 14, 2001, as amended and
restated as of March 30, 2001 (as amended, supplemented or otherwise modified
from time to time, the "Guarantee Agreement"), among Superholdings, APCS,
Alamosa Delaware, the Subsidiary Pledgors and the Collateral Agent.
The Lenders have agreed to make Loans to the Borrower and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions
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specified in, the Credit Agreement. Superholdings, APCS, Alamosa Delaware and
the Subsidiary Guarantors (as defined in the Security Agreement), have agreed to
guarantee, among other things, all the obligations of the Borrower under the
Credit Agreement. The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit are conditioned upon, among other
things, the execution and delivery by the Pledgors of a Pledge Agreement in the
form hereof to secure (a) the due and punctual payment by the Borrower of (i)
the principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be
made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral and
(iii) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of the Borrower to the Secured Parties
under the Credit Agreement or the other Loan Documents, (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Borrower under or pursuant to the Credit Agreement or the other Loan Documents,
(c) the due and punctual payment and performance of all covenants, agreements,
obligations and liabilities of Superholdings, APCS, Alamosa Delaware and each
Subsidiary Pledgor under or pursuant to this Agreement or the other Loan
Documents, including the guarantee obligations of Loan Parties other than the
Borrower under the Guarantee Agreement and (d) the due and punctual payment and
performance of all obligations of the Loan Parties under each Hedging Agreement
entered into with any counterparty that was a Lender (or an Affiliate of a
Lender) at the time such Hedging Agreement was entered into in accordance with
Section 5.14 of the Credit Agreement (or on the Original Effective Date, in the
case of any such Hedging Agreement existing on such date) (all the monetary and
other obligations referred to in the preceding clauses (a) through (d) being
referred to collectively as the "Obligations"). Capitalized terms used herein
and not defined herein shall have meanings assigned to such terms in the Credit
Agreement.
In connection with the amendment and restatement of the Credit Agreement,
the parties hereto desire to amend and restate, in the form
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of this Agreement,
the Pledge Agreement dated as of February 14, 2001, among the Pledgors party
thereto and the Collateral Agents.
Accordingly, the Pledgors and the Collateral Agent, on behalf of itself
and each Secured Party (and each of their respective successors or assigns),
hereby agree as follows:
SECTION 1. Pledge. As security for the payment and performance, as the
case may be, in full of the Obligations, each Pledgor hereby transfers, grants,
bargains, sells, conveys, hypothecates, pledges, sets over and delivers unto the
Collateral Agent, its successors and assigns, and hereby grants to the
Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, a security interest in all of the Pledgor's right, title and
interest in, to and under (a) the shares of Capital Stock owned by it and listed
on Schedule II hereto and any shares of Capital Stock of the Borrower or any
Subsidiary obtained in the future by the Pledgor and the certificates
representing all such shares (the "Pledged Stock"); provided, however, that the
Pledged Stock shall not include more than 65% of the issued and outstanding
shares of stock of any Foreign Subsidiary; (b)(i) the debt securities listed
opposite the name of the Pledgor on Schedule II hereto, (ii) any debt
securities, instruments or obligations in the future issued to the Pledgor and
(iii) the promissory notes and any other instruments evidencing such debt
securities (the "Pledged Debt Securities"); (c) all other securities and
instruments that may be delivered to and held by the Collateral Agent pursuant
to the terms hereof; (d) subject to Section 5, all payments of principal or
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed, in respect of, in exchange for or
upon the conversion of the securities and instruments referred to in clauses (a)
and (b) above; (e) subject to Section 5, all rights and privileges of the
Pledgor with respect to the securities and other property referred to in clauses
(a), (b), (c) and (d) above; and (f) all proceeds of any of the foregoing (the
items referred to in clauses (a) through (f) above being collectively referred
to as the "Collateral"); provided further, that (i) the ▇▇▇▇▇▇▇ Obligations
shall be secured only by the ▇▇▇▇▇▇▇ Collateral, (ii) the WOW Obligations shall
be secured only by the WOW Collateral and (iii) the Southwest Obligations shall
be secured only by the Southwest Collateral (it being understood that the
▇▇▇▇▇▇▇ Collateral, the WOW Collateral and the Southwest Collateral shall also
secure all General Obligations) and provided further that any Collateral that is
neither ▇▇▇▇▇▇▇ Collateral nor WOW Collateral nor Southwest Collateral shall
only secure the General Obligations. Upon delivery to the Collateral Agent,
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(a)
any stock certificates, notes or other securities now or hereafter included in
the Collateral (the "Pledged Securities") shall be accompanied by stock powers
duly executed in blank or other instruments of transfer satisfactory to the
Collateral Agent and by such other instruments and documents as the Collateral
Agent may reasonably request and (b) all other property comprising part of the
Collateral shall be accompanied by proper instruments of assignment duly
executed by the applicable Pledgor and such other instruments or documents as
the Collateral Agent may reasonably request. Each delivery of Pledged Securities
shall be accompanied by a schedule describing the securities theretofore and
then being pledged hereunder, which schedule shall be attached hereto as
Schedule II and made a part hereof. Each schedule so delivered shall supersede
any prior schedules so delivered. For the purposes of this Agreement:
"General Obligations" means all Obligations other than ▇▇▇▇▇▇▇
Obligations, WOW Obligations and Southwest Obligations;
"▇▇▇▇▇▇▇" means ▇▇▇▇▇▇▇ Wireless Communications, L.L.C., a Missouri
limited liability company;
"▇▇▇▇▇▇▇ Collateral" means that portion of the Collateral that was,
immediately prior to the Original Effective Date, subject to a Lien created
pursuant to the ▇▇▇▇▇▇▇ Security Documents or that would, on or after the
Original Effective Date, have been collateral subject to a Lien created pursuant
to the ▇▇▇▇▇▇▇ Security Documents in accordance with the provisions thereof
(including with respect to after acquired property), as if the ▇▇▇▇▇▇▇ Security
Documents had remained in effect on and after the Original Effective Date, but
shall not in any event include any property or assets other than (i) Equity
Interests in ▇▇▇▇▇▇▇ and (ii) property and assets owned by ▇▇▇▇▇▇▇ and its
subsidiaries;
"▇▇▇▇▇▇▇ Credit Agreement" means the Credit Agreement dated as of
September 8, 1999, among ▇▇▇▇▇▇▇, certain lenders party thereto, State Street
Bank and Trust Company, as collateral agent, and Lucent Technologies Inc., as
administrative agent, as amended and in effect immediately prior to the Original
Effective Date;
"▇▇▇▇▇▇▇ Obligations" means Obligations consisting of (i) the Borrower's
obligation to pay (x) the principal amount of ▇▇▇▇▇▇▇ Term Loans as evidenced by
the account entries kept by the Administrative Agent, pursuant to Section 2.08
of the Credit Agreement and (y) interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such a proceeding),
fees, indemnities, cost
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reimbursements and similar amounts directly attributable
to the principal amounts of ▇▇▇▇▇▇▇ Term Loans and (ii) each other Loan Party's
obligations under the Guarantee Agreement in respect of its guarantee of the
obligations referred to in clause (i) above;
"▇▇▇▇▇▇▇ Security Documents" means collectively, (i) the Security
Agreement dated as of September 8, 1999, among ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wireless
Properties, L.L.C., and State Street Bank and Trust Company, as collateral
agent, (ii) the Pledge Agreement dated as of September 8, 1999, between ▇▇▇▇▇▇▇
and State Street Bank and Trust Company, as collateral agent, (iii) the Pledge
Agreement dated as of September 8, 1999, among ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and State Street Bank and Trust Company, as collateral agent, and (iv)
the Collateral Assignment of Leases dated as of August 31, 1999, between ▇▇▇▇▇▇▇
and State Street Bank and Trust Company, as collateral agent, together in each
case with all documents, financing statements, filings, recordations,
instruments and agreements executed, delivered, filed or recorded pursuant to or
in connection with any of the foregoing, in each case as amended, supplemented
and in effect immediately prior to the Original Effective Date;
"▇▇▇▇▇▇▇ Term Loans" means $20,000,000 principal amount of Term Loans as
evidenced by the account entries kept by the Administrative Agent, pursuant to
Section 2.08 of the Credit Agreement made on the Original Effective Date the
proceeds of which(together with the proceeds of other Loans) were utilized to
repay outstanding Indebtedness under the ▇▇▇▇▇▇▇ Credit Agreement;
"Southwest" means Southwest PCS, L.P., an Oklahoma limited partnership;
"Southwest Collateral" means that portion of the Collateral that was,
immediately prior to the Restatement Effective Date, subject to a Lien created
pursuant to the Southwest Security Documents or that would, on or after the
Restatement Effective Date, have been collateral subject to a Lien created
pursuant to the Southwest Security Documents in accordance with the provisions
thereof (including with respect to after acquired property), assuming the
Southwest Security Documents had remained in effect on and after the Restatement
Effective Date, but shall not in any event include any property or assets other
than (i) Equity Interests in Southwest and (ii) property and assets owned by
Southwest and its subsidiaries;
"Southwest Credit Agreement" means the Credit Agreement dated as of April
30, 1999, as and amended and restated as of September 22, 2000, among Southwest,
certain lenders party thereto and BNP Paribas, as collateral agent, as amended
and in effect immediately prior to the
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Restatement Effective Date;
"Southwest Obligations" means Obligations consisting of (i) the
Borrower's obligation to pay (x) the principal amount of the Southwest Term
Loans as evidenced by the account entries kept by the Administrative Agent,
pursuant to Section 2.08 of the Credit Agreement and (y) interest (including
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such a proceeding), fees, indemnities, cost reimbursements and
similar amounts directly attributable to the principal amounts of the Southwest
Term Loans and (ii) each other Loan Party's obligations under the Guarantee
Agreement in respect of its guarantee of the obligations referred to in clause
(i) above;
"Southwest Security Documents" means, collectively, (i) the Security
Agreement dated as of April 30, 1999, between Southwest and BNP Paribas, as
collateral agent and (ii) the Partnership and LLC Pledge Agreements, each dated
as of April 30, 1999, between the pledgors party thereto and BNP Paribas, as
collateral agent together in each case with all documents, financing statements,
filings, recordations, instruments and agreements executed, delivered, filed or
recorded pursuant to or in connection with any of the foregoing, in each case as
amended, supplemented and in effect immediately prior to the Restatement
Effective Date;
"Southwest Term Loans" means $53,000,000 principal amount of Term Loans
as evidenced by the account entries kept by the Administrative Agent, pursuant
to Section 2.08 of the Credit Agreement made on the Restatement Effective Date
the proceeds of which were utilized to repay outstanding Indebtedness under the
Southwest Credit Agreement;
"WOW" means Washington Oregon Wireless, LLC, an Oregon limited liability
company;
"WOW Collateral" means that portion of the Collateral that was,
immediately prior to the Original Effective Date, subject to a Lien created
pursuant to WOW Security Documents or that would, on or after the Original
Effective Date, have been collateral subject to a Lien created pursuant to the
WOW Security Documents in accordance with the provisions thereof (including with
respect to after acquired property), assuming the WOW Security Documents had
remained in effect on and after the Original Effective Date, but shall not in
any event include any property or assets other than (i) Equity Interests in WOW
and (ii) property and assets owned by WOW and its subsidiaries;
"WOW Credit Agreement" means the Credit Agreement dated as of April 12,
2000, among WOW, the lender or lenders party thereto, and CoBank, ACB, as
administrative agent, as amended and in effect immediately prior
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to the Original Effective Date;
"WOW Obligations" means Obligations consisting of (i) the Borrower's
obligation to pay (x) the principal amount of WOW Term Loans as evidenced by the
account entries kept by the Administrative Agent, pursuant to Section 2.08 of
the Credit Agreement and (y) interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such a proceeding),
fees, indemnities, cost reimbursements and similar amounts directly attributable
to the principal amounts of WOW Term Loans and (ii) each other Loan Party's
obligations under the Guarantee Agreement in respect of its guarantee of the
obligations referred to in clause (i) above;
"WOW Security Documents" means collectively, (i) the Security Agreement
dated as of April 12, 2000, made by WOW in favor of CoBank, ACB, as
administrative agent, (ii) the Collateral Assignment of Sprint Agreements dated
as of April 12, 2000, between WOW and CoBank, ACB, as administrative agent,
(iii) the Collateral Assignment of Sales Agreement dated as of April 12, 2000,
between WOW and CoBank, ACB, as administrative agent, (iv) the several
Membership Interests Pledge Agreements, each dated as of April 12, 2000, between
CoBank, ACB, as administrative agent, and the several owners of the Equity
Interest in WOW and (v) the Collateral Assignments and Mortgages of Leases and
Licenses, each dated as of April 12, 2000, between WOW and CoBank, ACB, as
administrative agent, together in each case with all documents, financing
statements, filings, recordations, instruments and agreements executed,
delivered, filed or recorded pursuant to or in connection with any of the
foregoing, in each case as amended, supplemented and in effect immediately prior
to the Original Effective Date; and
"WOW Term Loans" means $10,000,000 principal amount of Term Loans as
evidenced by the account entries kept by the Administrative Agent, pursuant to
Section 2.08 of the Credit Agreement made on the Original Effective Date the
proceeds of which (together with the proceeds of other Loans) were utilized to
repay outstanding Indebtedness under the WOW Credit Agreement.
TO HAVE AND TO HOLD the Collateral, together with all right, title,
interest, powers, privileges and preferences pertaining or incidental thereto,
unto the Collateral Agent, its successors and assigns, for the ratable benefit
of the Secured Parties, forever; subject, however, to the terms, covenants and
conditions hereinafter set forth.
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SECTION 2. Delivery of the Collateral. (a) Each Pledgor agrees promptly
to deliver or cause to be delivered to the Collateral Agent any and all Pledged
Securities, and any and all certificates or other instruments or documents
representing the Collateral.
(b) Each Pledgor will cause any Indebtedness for borrowed money owed to
the Pledgor by any person that is evidenced by a duly executed promissory note
to be pledged and delivered to the Collateral Agent pursuant to the terms
thereof.
SECTION 3. Representations, Warranties and Covenants. Each Pledgor hereby
represents, warrants and covenants, as to itself and the Collateral pledged by
it hereunder, to and with the Collateral Agent that:
(a) as of the Restatement Effective Date, the Pledged Stock
represents that percentage as set forth on Schedule II of the issued
and outstanding shares of each class of the Capital Stock of the issuer
with respect thereto;
(b) except for the security interest granted hereunder, the
Pledgor (i) is and will at all times continue to be the direct owner,
beneficially and of record, of the Pledged Securities indicated on
Schedule II, (ii) holds the same free and clear of all Liens, (iii)
will make no assignment, pledge, hypothecation or transfer of, or
create or permit to exist any security interest in or other Lien on,
the Collateral, other than pursuant hereto, and (iv) subject to Section
5, will cause any and all Collateral, whether for value paid by the
Pledgor or otherwise, to be forthwith deposited with the Collateral
Agent and pledged or assigned hereunder subject to release in
accordance with the terms hereof;
(c) the Pledgor (i) has the power and authority to pledge the
Collateral in the manner hereby done or contemplated and (ii) will
defend its title or interest thereto or therein against any and all
Liens (other than the Lien created by this Agreement), however arising,
of all persons whomsoever;
(d) no consent of any other person (including stockholders or
creditors of any Pledgor) and no consent or approval of any
Governmental Authority or any securities exchange was or is necessary
to the validity of the pledge effected hereby;
(e) by virtue of the execution and delivery by the Pledgors of
this Agreement, when the Pledged Securities, certificates or other
documents representing or evidencing the Collateral are delivered to
the Collateral Agent in accordance
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with this Agreement, the Collateral
Agent will obtain a valid and perfected first lien upon and security
interest in such Pledged Securities as security for the payment and
performance of the Obligations;
(f) the pledge effected hereby is effective to vest in the
Collateral Agent, on behalf of the Secured Parties, the rights of the
Collateral Agent in the Collateral as set forth herein;
(g) all of the Pledged Stock has been duly authorized and
validly issued and is fully paid and nonassessable;
(h) all information set forth herein relating to the
Pledged Stock is accurate and complete in all material respects as
of the date hereof; and
(i) the pledge of the Pledged Stock pursuant to this Agreement
does not violate Regulation T, U or X of the Federal Reserve Board or
any successor thereto as of the date hereof.
SECTION 4. Registration in Nominee Name; Denominations. The Collateral
Agent, on behalf of the Secured Parties, shall have the right (in its sole and
absolute discretion) to hold the Pledged Securities in its own name as pledgee,
the name of its nominee (as pledgee) or the name of the Pledgors, endorsed or
assigned in blank or in favor of the Collateral Agent. Each Pledgor will
promptly give to the Collateral Agent copies of any notices or other
communications received by it with respect to Pledged Securities registered in
the name of such Pledgor. The Collateral Agent shall at all times have the right
to exchange the certificates representing Pledged Securities for certificates of
smaller or larger denominations for any purpose consistent with this Agreement.
SECTION 5. Voting Rights; Dividends and Interest, etc. (a) Unless
and until an Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all
voting and/or other consensual rights and powers inuring to an owner of
Pledged Securities or any part thereof for any purpose consistent with
the terms of this Agreement, the Credit Agreement and the other Loan
Documents; provided, however, that such Pledgor will not be entitled to
exercise any such right if the result thereof could materially and
adversely affect the rights inuring to a holder of the Pledged
Securities or the rights and remedies of any of the Secured Parties
under this Agreement or the Credit Agreement or any other Loan Document
or the ability of the
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Secured Parties to exercise the same.
(ii) The Collateral Agent shall execute and deliver to each
Pledgor, or cause to be executed and delivered to each Pledgor, all
such proxies, powers of attorney and other instruments as such Pledgor
may reasonably request for the purpose of enabling such Pledgor to
exercise the voting and/or consensual rights and powers it is entitled
to exercise pursuant to subparagraph (i) above and to receive the cash
dividends it is entitled to receive pursuant to subparagraph (iii)
below.
(iii) Each Pledgor shall be entitled to receive and retain any
and all cash dividends, interest and principal paid on the Pledged
Securities to the extent and only to the extent that such cash
dividends, interest and principal are not prohibited by, and otherwise
paid in accordance with, the terms and conditions of the Credit
Agreement, the other Loan Documents and applicable laws. All noncash
dividends, interest and principal, and all dividends, interest and
principal paid or payable in cash or otherwise in connection with a
partial or total liquidation or dissolution, return of capital, capital
surplus or paid-in surplus, and all other distributions (other than
distributions referred to in the preceding sentence) made on or in
respect of the Pledged Securities, whether paid or payable in cash or
otherwise, whether resulting from a subdivision, combination or
reclassification of the outstanding capital stock of the issuer of any
Pledged Securities or received in exchange for Pledged Securities or
any part thereof, or in redemption thereof, or as a result of any
merger, consolidation, acquisition or other exchange of assets to which
such issuer may be a party or otherwise, shall be and become part of
the Collateral, and, if received by any Pledgor, shall not be
commingled by such Pledgor with any of its other funds or property but
shall be held separate and apart therefrom, shall be held in trust for
the benefit of the Collateral Agent and shall be forthwith delivered to
the Collateral Agent in the same form as so received (with any
necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to dividends, interest or principal that such
Pledgor is authorized to receive pursuant to paragraph (a)(iii) above shall
cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall have the sole and exclusive right and authority to receive
and retain such dividends, interest or principal. All dividends, interest or
principal received by the Pledgor contrary to the
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provisions of this Section 5 shall be held in trust for the benefit of the
Collateral Agent, shall be segregated from other property or funds of such
Pledgor and shall be forthwith delivered to the Collateral Agent upon demand in
the same form as so received (with any necessary endorsement). Any and all money
and other property paid over to or received by the Collateral Agent pursuant to
the provisions of this paragraph (b) shall be retained by the Collateral Agent
in an account to be established by the Collateral Agent upon receipt of such
money or other property and shall be applied in accordance with the provisions
of Section 7. After all Events of Default have been cured or waived, the
Collateral Agent shall, within five Business Days after all such Events of
Default have been cured or waived, repay to each Pledgor all cash dividends,
interest or principal (without interest), that such Pledgor would otherwise be
permitted to retain pursuant to the terms of paragraph (a)(iii) above and which
remain in such account.
(c) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to exercise the voting and consensual rights
and powers it is entitled to exercise pursuant to paragraph (a)(i) of this
Section 5, and the obligations of the Collateral Agent under paragraph (a)(ii)
of this Section 5, shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall have the sole and exclusive right
and authority to exercise such voting and consensual rights and powers, provided
that, unless otherwise directed by the Required Lenders, the Collateral Agent
shall have the right from time to time following and during the continuance of
an Event of Default to permit the Pledgors to exercise such rights. After all
Events of Default have been cured or waived, such Pledgor will have the right to
exercise the voting and consensual rights and powers that it would otherwise be
entitled to exercise pursuant to the terms of paragraph (a)(i) above.
SECTION 6. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, subject to applicable regulatory and legal
requirements, the Collateral Agent may sell the Collateral, or any part thereof,
at public or private sale or at any broker's board or on any securities
exchange, for cash, upon credit or for future delivery as the Collateral Agent
shall deem appropriate; provided that any and all ▇▇▇▇▇▇▇ Collateral, WOW
Collateral and Southwest Collateral must first be applied to repay the ▇▇▇▇▇▇▇
Obligation, WOW Obligation and Southwest Obligation, respectively, and only
thereafter may be used to repay amounts outstanding under the remainder of the
General Obligations. The Collateral Agent shall be authorized at any such sale
(if it deems it advisable to
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do so) to restrict the prospective bidders or purchasers to persons who will
represent and agree that they are purchasing the Collateral for their own
account for investment and not with a view to the distribution or sale thereof,
and upon consummation of any such sale the Collateral Agent shall have the right
to assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale shall hold the property
sold absolutely free from any claim or right on the part of any Pledgor, and, to
the extent permitted by applicable law, the Pledgors hereby waive all rights of
redemption, stay, valuation and appraisal any Pledgor now has or may at any time
in the future have under any rule of law or statute now existing or hereafter
enacted.
The Collateral Agent shall give a Pledgor 10 days' prior written notice
(which each Pledgor agrees is reasonable notice within the meaning of Section
9-504(3) of the Uniform Commercial Code as in effect in the State of New York or
its equivalent in other jurisdictions) of the Collateral Agent's intention to
make any sale of such Pledgor's Collateral. Such notice, in the case of a public
sale, shall state the time and place for such sale and, in the case of a sale at
a broker's board or on a securities exchange, shall state the board or exchange
at which such sale is to be made and the day on which the Collateral, or portion
thereof, will first be offered for sale at such board or exchange. Any such
public sale shall be held at such time or times within ordinary business hours
and at such place or places as the Collateral Agent may fix and state in the
notice of such sale. At any such sale, the Collateral, or portion thereof, to be
sold may be sold in one lot as an entirety or in separate parcels, as the
Collateral Agent may (in its sole and absolute discretion) determine. The
Collateral Agent shall not be obligated to make any sale of any Collateral if it
shall determine not to do so, regardless of the fact that notice of sale of such
Collateral shall have been given. The Collateral Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case any sale of all or any part of the
Collateral is made on credit or for future delivery, the Collateral so sold may
be retained by the Collateral Agent until the sale price is paid in full by the
purchaser or
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purchasers thereof, but the Collateral Agent shall not incur any liability in
case any such purchaser or purchasers shall fail to take up and pay for the
Collateral so sold and, in case of any such failure, such Collateral may be sold
again upon like notice. At any public (or, to the extent permitted by applicable
law, private) sale made pursuant to this Section 6, any Secured Party may bid
for or purchase, free from any right of redemption, stay or appraisal on the
part of any Pledgor (all said rights being also hereby waived and released), the
Collateral or any part thereof offered for sale and may make payment on account
thereof by using any claim then due and payable to it from such Pledgor as a
credit against the purchase price, and it may, upon compliance with the terms of
sale, hold, retain and dispose of such property without further accountability
to such Pledgor therefor. For purposes hereof, (a) a written agreement to
purchase the Collateral or any portion thereof shall be treated as a sale
thereof, (b) the Collateral Agent shall be free to carry out such sale pursuant
to such agreement and (c) such Pledgor shall not be entitled to the return of
the Collateral or any portion thereof subject to such agreement, notwithstanding
the fact that after the Collateral Agent shall have entered into such an
agreement all Events of Default shall have been remedied and the Obligations
paid in full. As an alternative to exercising the power of sale herein conferred
upon it, the Collateral Agent may proceed by a suit or suits at law or in equity
to foreclose upon the Collateral and to sell the Collateral or any portion
thereof pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale
pursuant to the provisions of this Section 6 shall be deemed to conform to the
commercially reasonable standards as provided in Section 9-504(3) of the Uniform
Commercial Code as in effect in the State of New York or its equivalent in other
jurisdictions.
SECTION 7. Application of Proceeds of Sale. (a) The proceeds of
any sale of Collateral pursuant to Section 6, as well as any Collateral
consisting of cash, shall be applied by the Collateral Agent as follows:
FIRST, to the payment of all costs and expenses incurred by
the Collateral Agent in connection with such sale or otherwise in
connection with this Agreement, any other Loan Document or any
Page 13
of the Obligations, including all court costs and the reasonable fees
and expenses of its agents and legal counsel, the repayment of all
advances made by the Collateral Agent hereunder or under any other
Loan Document on behalf of any Pledgor and any other costs or expenses
incurred in connection with the exercise of any right or remedy
hereunder or under any other Loan Document;
SECOND, to the payment in full of the Obligations (the amounts
so applied to be distributed among the Secured Parties pro rata in
accordance with the amounts of the Obligations owed to them on the date
of any such distribution); and
THIRD, to the Pledgors, their successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
(b) Notwithstanding any contrary provision of paragraph (a) of this
Section, (i) proceeds of Collateral and cash Collateral other than the ▇▇▇▇▇▇▇
Collateral, the WOW Collateral and the Southwest Collateral shall not be applied
to the payment of ▇▇▇▇▇▇▇ Obligations, WOW Obligations or Southwest Obligations,
(ii) proceeds of WOW Collateral and cash WOW Collateral shall not be applied to
the payment of ▇▇▇▇▇▇▇ Obligations or Southwest Obligations, and shall be
applied to the payment of WOW Obligations, until the WOW Obligations have been
paid in full, prior to being applied to payment of the General Obligations,
(iii) proceeds of ▇▇▇▇▇▇▇ Collateral and cash ▇▇▇▇▇▇▇ Collateral shall not be
applied to the payment of WOW Obligations or Southwest Obligations, and shall be
applied to the payment of the ▇▇▇▇▇▇▇ Obligations, until the ▇▇▇▇▇▇▇ Obligations
have been paid in full, prior to being applied to payment of the General
Obligations and (iv) proceeds of Southwest Collateral and cash Southwest
Collateral shall not be applied to the payment of ▇▇▇▇▇▇▇ Obligations or WOW
Obligations and shall be applied to payment of Southwest Obligations, until the
Southwest Obligations have been paid in full, prior to being applied to payment
of General Obligations.
(c) The Collateral Agent shall have absolute discretion as to the time
of application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the purchase money by the Collateral Agent or of the officer
making the sale shall be a sufficient discharge to the purchaser or purchasers
of the Collateral so sold and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money paid over
to the Collateral Agent or such officer or be
Page 14
answerable in any way for the misapplication thereof.
SECTION 8. Reimbursement of Collateral Agent. (a) Each Pledgor agrees
to pay upon demand to the Collateral Agent the amount of any and all reasonable
expenses, including the reasonable fees, other charges and disbursements of its
counsel and of any experts or agents, that the Collateral Agent may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Collateral, (iii) the exercise or enforcement of any of the rights of the
Collateral Agent hereunder or (iv) the failure by such Pledgor to perform or
observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the
other Loan Documents, each Pledgor agrees to indemnify the Collateral Agent and
the Indemnitees (as defined in Section 9.03 of the Credit Agreement) against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, other
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution
or delivery of this Agreement or any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby or (ii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not 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) Any amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 8 shall remain operative and in full force and effect regardless
of the termination of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document or any investigation made by or on behalf of the Collateral Agent or
any other Secured Party. All amounts due under this Section 8 shall be payable
on written demand therefor and shall bear interest at the rate specified in
Section 2.12 of the Credit Agreement.
SECTION 9. Collateral Agent Appointed Attorney-in-Fact. Each Pledgor
hereby appoints the Collateral Agent the attorney-in-fact of such
Page 15
Pledgor for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instrument that the Collateral Agent may
deem necessary or advisable to accomplish the purposes hereof, which appointment
is irrevocable and coupled with an interest. Without limiting the generality of
the foregoing, the Collateral Agent shall have the right, upon the occurrence
and during the continuance of an Event of Default, with full power of
substitution either in the Collateral Agent's name or in the name of such
Pledgor, to ask for, demand, ▇▇▇ for, collect, receive and give acquittance for
any and all moneys due or to become due under and by virtue of any Collateral,
to endorse checks, drafts, orders and other instruments for the payment of money
payable to the Pledgor representing any interest or dividend or other
distribution payable in respect of the Collateral or any part thereof or on
account thereof and to give full discharge for the same, to settle, compromise,
prosecute or defend any action, claim or proceeding with respect thereto, and to
sell, assign, endorse, pledge, transfer and to make any agreement respecting, or
otherwise deal with, the same; provided, however, that nothing herein contained
shall be construed as requiring or obligating the Collateral Agent to make any
commitment or to make any inquiry as to the nature or sufficiency of any payment
received by the Collateral Agent, or to present or file any claim or notice, or
to take any action with respect to the Collateral or any part thereof or the
moneys due or to become due in respect thereof or any property covered thereby.
The Collateral Agent and the other Secured Parties shall be accountable only for
amounts actually received as a result of the exercise of the powers granted to
them herein, and neither they nor their officers, directors, employees or agents
shall be responsible to any Pledgor for any act or failure to act hereunder,
except for their own gross negligence or wilful misconduct.
SECTION 10. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder 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 Collateral Agent hereunder
and of the other Secured Parties 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 provisions of this Agreement or consent to any departure by any
Pledgor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Pledgor in any case shall entitle such Pledgor to any
other or further notice or demand in similar or other circumstances.
Page 16
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Collateral Agent and the Pledgor or Pledgors with respect to which such
waiver, amendment or modification is to apply, subject to any consent required
in accordance with Section 9.02 of the Credit Agreement.
SECTION 11. Securities Act, etc. In view of the position of the
Pledgors in relation to the Pledged Securities, or because of other current or
future circumstances, a question may arise under the Securities Act of 1933, as
now or hereafter in effect, or any similar statute hereafter enacted analogous
in purpose or effect (such Act and any such similar statute as from time to time
in effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Securities permitted hereunder. Each Pledgor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Securities, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Securities could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Collateral Agent in any
attempt to dispose of all or part of the Pledged Securities under applicable
Blue Sky or other state securities laws or similar laws analogous in purpose or
effect. Each Pledgor recognizes that in light of such restrictions and
limitations the Collateral Agent may, with respect to any sale of the Pledged
Securities, limit the purchasers to those who will agree, among other things, to
acquire such Pledged Securities for their own account, for investment, and not
with a view to the distribution or resale thereof. Each Pledgor acknowledges and
agrees that in light of such restrictions and limitations, the Collateral Agent,
in its sole and absolute discretion, (a) may proceed to make such a sale whether
or not a registration statement for the purpose of registering such Pledged
Securities or part thereof shall have been filed under the Federal Securities
Laws and (b) may approach and negotiate with a single potential purchaser to
effect such sale. Each Pledgor acknowledges and agrees that any such sale might
result in prices and other terms less favorable to the seller than if such sale
were a public sale without such restrictions. In the event of any such sale, the
Collateral Agent shall incur no responsibility or liability for selling all or
any part of the Pledged Securities at a price that the Collateral Agent, in its
sole and absolute discretion, may in good ▇▇▇▇▇ ▇▇▇▇ reasonable
Page 17
under the circumstances, notwithstanding the possibility that a substantially
higher price might have been realized if the sale were deferred until after
registration as aforesaid or if more than a single purchaser were approached.
The provisions of this Section 11 will apply notwithstanding the existence of a
public or private market upon which the quotations or sales prices may exceed
substantially the price at which the Collateral Agent sells.
SECTION 12. Registration, etc. Each Pledgor agrees that, upon the
occurrence and during the continuance of an Event of Default hereunder, if for
any reason the Collateral Agent desires to sell any of the Pledged Securities of
the Borrower at a public sale, it will, at any time and from time to time, upon
the written request of the Collateral Agent, use its best efforts to take or to
cause the issuer of such Pledged Securities to take such action and prepare,
distribute and/or file such documents, as are required or advisable in the
reasonable opinion of counsel for the Collateral Agent to permit the public sale
of such Pledged Securities. Each Pledgor further agrees to indemnify, defend and
hold harmless the Collateral Agent, each other Secured Party, any underwriter
and their respective officers, directors, affiliates and controlling persons
from and against all loss, liability, expenses, costs of counsel (including,
without limitation, reasonable fees and expenses to the Collateral Agent of
legal counsel), and claims (including the costs of investigation) that they may
incur insofar as such loss, liability, expense or claim arises out of or is
based upon any alleged untrue statement of a material fact contained in any
prospectus (or any amendment or supplement thereto) or in any notification or
offering circular, or arises out of or is based upon any alleged omission to
state a material fact required to be stated therein or necessary to make the
statements in any thereof not misleading, except insofar as the same may have
been caused by any untrue statement or omission based upon information furnished
in writing to such Pledgor or the issuer of such Pledged Securities by the
Collateral Agent or any other Secured Party expressly for use therein. Each
Pledgor further agrees, upon such written request referred to above, to use its
best efforts to qualify, file or register, or cause the issuer of such Pledged
Securities to qualify, file or register, any of the Pledged Securities under the
Blue Sky or other securities laws of such states as may be requested by the
Collateral Agent and keep effective, or cause to be kept effective, all such
qualifications, filings or registrations. Each Pledgor will bear all costs and
expenses of carrying out its obligations under this Section 12.
Page 18
Each Pledgor acknowledges that there is no adequate remedy at law for failure by
it to comply with the provisions of this Section 12 and that such failure would
not be adequately compensable in damages, and therefore agrees that its
agreements contained in this Section 12 may be specifically enforced.
SECTION 13. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the grant of a security interest in the Collateral and all
obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document, any agreement with respect to any of the
Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to any departure from the Credit Agreement, any other Loan
Document or any other agreement or instrument relating to any of the foregoing,
(c) any exchange, release or nonperfection of any other collateral, or any
release or amendment or waiver of or consent to or departure from any guaranty,
for all or any of the Obligations or (d) any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any Pledgor in
respect of the Obligations or in respect of this Agreement (other than the
indefeasible payment in full of all the Obligations).
SECTION 14. Termination or Release. (a) This Agreement and the security
interests granted hereby shall terminate when all the Obligations have been
indefeasibly paid in full and the Lenders have no further commitment to lend
under the Credit Agreement, the LC Exposure has been reduced to zero and the
Issuing Bank has no further obligation to issue Letters of Credit under the
Credit Agreement.
(b) Upon any sale or other transfer by any Pledgor of any Collateral
that is permitted under the Credit Agreement to any person that is not a
Pledgor, or, upon the effectiveness of any written consent to the release of the
security interest granted hereby in any Collateral pursuant to the Credit
Agreement, the security interest in such Collateral shall be automatically
released.
(c) In connection with any termination or release pursuant to paragraph
(a) or (b), the Collateral Agent shall execute and deliver to any Pledgor, at
such Pledgor's expense, all documents that such Pledgor shall reasonably request
to evidence such termination or release. Any execution and delivery of documents
pursuant to this Section 14 shall be without recourse to or warranty by the
Collateral Agent.
Page 19
SECTION 15. Notices. All communications and notices hereunder
shall be in writing and given as provided in Section 9.01 of the Credit
Agreement. All communications and notices hereunder to any Subsidiary
Pledgor shall be given to it in care of the Borrower.
SECTION 16. Further Assurances. Each Pledgor agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Collateral Agent may at any time
reasonably request in connection with the administration and enforcement of this
Agreement or with respect to the Collateral or any part thereof or in order
better to assure and confirm unto the Collateral Agent its rights and remedies
hereunder.
SECTION 17. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any Pledgor that are contained in
this Agreement shall bind and inure to the benefit of its successors and
assigns. This Agreement shall become effective as to any Pledgor when a
counterpart hereof executed on behalf of such Pledgor shall have been delivered
to the Collateral Agent and a counterpart hereof shall have been executed on
behalf of the Collateral Agent, and thereafter shall be binding upon such
Pledgor and the Collateral Agent and their respective successors and assigns,
and shall inure to the benefit of such Pledgor, the Collateral Agent and the
other Secured Parties, and their respective successors and assigns, except that
no Pledgor shall have the right to assign its rights hereunder or any interest
herein or in the Collateral (and any such attempted assignment shall be void),
except as expressly contemplated by this Agreement or the other Loan Documents.
If all of the capital stock of a Pledgor is sold, transferred or otherwise
disposed of to a person that is not an Affiliate of the Borrower pursuant to a
transaction permitted by Section 6.05 of the Credit Agreement, such Pledgor
shall be released from its obligations under this Agreement without further
action. This Agreement shall be construed as a separate agreement with respect
to each Pledgor and may be amended, modified, supplemented, waived or released
with respect to any Pledgor without the approval of any other Pledgor and
without affecting the obligations of any other Pledgor hereunder
SECTION 18. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by each Pledgor herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Collateral Agent and the other Secured Parties and
shall survive the making by the Lenders of the Loans and the issuance of the
Letters of Credit by the Issuing Bank, regardless of any investigation made by
the Secured Parties or on their behalf, and shall continue in full force and
effect as long as the
Page 20
principal of or any accrued interest on any Loan or any other fee or amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid or the LC Exposure does not equal zero and as long as the Commitments and
the LC Commitments have not been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 19. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute a single contract, and shall become effective
as provided in Section 17. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 21. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement. Section headings used herein are for convenience of reference only,
are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting this Agreement.
SECTION 22. Jurisdiction; Consent to Service of Process. (a) Each
Pledgor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that, to the extent permitted by applicable law, all
claims in respect of any such action or
Page 21
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 shall affect any right that the
Collateral Agent or any other Secured Party may otherwise have to bring any
action or proceeding relating to this Agreement or the other Loan Documents
against any Pledgor or its properties in the courts of any jurisdiction.
(b) Each Pledgor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that 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 the other Loan Documents in any
New York State or Federal court. 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.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 15. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 23. 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 RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT. 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 24. Additional Pledgors. Pursuant to Section 5.12 of the Credit
Agreement, certain Subsidiaries of the Borrower that were not in existence or
not a Subsidiary on the date of the Credit Agreement are required to enter in
this Agreement as a Subsidiary Pledgor upon becoming a Subsidiary if such
Subsidiary owns or possesses property of a type that would be considered
Collateral hereunder. Upon execution and delivery by the Collateral Agent and a
Subsidiary of an instrument in the form of Annex
Page 22
1, such Subsidiary shall become a Subsidiary Pledgor hereunder with the same
force and effect as if originally named as a Subsidiary Pledgor herein. The
execution and delivery of such instrument shall not require the consent of any
Pledgor hereunder. The rights and obligations of each Pledgor hereunder shall
remain in full force and effect notwithstanding the addition of any new
Subsidiary Pledgor as a party to this Agreement.
SECTION 25. Execution of Financing Statements. Pursuant to Section
9-402 of the Uniform Commercial Code as in effect in the State of New York or
its equivalent in other jurisdictions, each Pledgor authorizes the Collateral
Agent to file financing statements with respect to the Collateral owned by it
without the signature of such Pledgor in such form and in such filing offices as
the Collateral Agent reasonably determines appropriate to perfect the security
interests of the Collateral Agent under this Agreement. A carbon, photographic
or other reproduction of this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction.
SECTION 26. Compliance with Laws. Notwithstanding anything herein which
may be construed to the contrary, no action shall be taken by any of the
Collateral Agent and the Secured Parties with respect to the Pledged Securities
(including termination or suspension of voting rights) unless and until any
required approval under the Federal Communications Act of 1934, and any
applicable rules and regulations thereunder, requiring the consent to or
approval of such action by the FCC or any governmental or other authority, have
been satisfied, and, to the extent applicable, any remedial action taken with
respect to the Collateral shall be subject to other applicable laws.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
ALAMOSA (DELAWARE), INC.,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name:
Title:
Page 23
ALAMOSA HOLDINGS, LLC,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name:
Title:
THE SUBSIDIARY PLEDGORS LISTED ON
SCHEDULE I HERETO EXCEPT ALAMOSA
LIMITED, LLC,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name:
Title: Authorized Officer
ALAMOSA LIMITED, LLC,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name:
Title:
CITICORP USA, INC., as Collateral Agent,
by
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director & VP
Schedule I to the
Pledge Agreement
SUBSIDIARY PLEDGORS
Subsidiary Guarantor Address
-----------------------------------------------------------------------------
Texas Telecommunications, LP ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Alamosa Properties, L.P. ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Alamosa Wisconsin Limited Partnership ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Page 24
Alamosa (Wisconsin) Properties, LLC ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Alamosa Delaware GP, LLC ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Alamosa Wisconsin GP, LLC ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Alamosa Finance, LLC ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Alamosa Limited, LLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Alamosa PCS, Inc. ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Alamosa Holdings, LLC ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Wireless Communications L.L.C. ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Wireless Properties L.L.C. ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Washington Oregon Wireless, LLC ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Washington Oregon Wireless Properties, LLC ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Washington Oregon Wireless Licenses, LLC ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Southwest PCS, L.P. ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
SWGP, LLC ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
SWLP, LLC ▇▇▇▇ ▇. ▇▇▇▇ 289
Page 25
Suite 120
Lubbock, Texas 79424
Southwest PCS Properties, LLC ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Southwest PCS Licenses, LLC ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
SUPPLEMENT NO. dated as of [ ], to the
AMENDED AND RESTATED PLEDGE AGREEMENT dated as of
February 14, 2001, as amended and restated as of
March 30, 2001 among Alamosa (Delaware), Inc., a
Delaware corporation ("Alamosa Delaware"), Alamosa
Holdings LLC, a Delaware limited liability company
(the "Borrower"), each subsidiary of Alamosa Delaware
listed on Schedule I hereto (each such subsidiary
individually a "Subsidiary Pledgor" and collectively,
the "Subsidiary Pledgors"; the Borrower, Alamosa
Delaware and Subsidiary Pledgors are referred to
collectively herein as the "Pledgors") and Citicorp
USA, Inc., a New York banking corporation
("Citicorp"), as collateral agent (in such capacity,
the "Collateral Agent") for the Secured Parties (as
defined in the Credit Agreement referred to below)
A. Reference is made to (a) the Amended and Restated Credit Agreement
dated as of February 14, 2001, as amended and restated as of March 30, 2001 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Alamosa Holdings, Inc. ("Superholdings"), Alamosa Delaware,
the Borrower the lenders from time to time 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, as administrative agent for the Lenders, Collateral Agent and issuing
bank (in such capacity, the "Issuing Bank") and (b) the Amended and Restated
Guarantee Agreement dated as of February 14, 2001, as amended and restated as of
March 31, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Guarantee Agreement"), among Superholdings, APCS, Alamosa Delaware,
the Subsidiary Pledgors and the Collateral Agent.
B. Capitalized terms used herein and not otherwise defined herein
Page 26
shall have the meanings assigned to such terms in the Credit Agreement.
C. The Pledgors have entered into the Pledge Agreement in order to
induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit. Pursuant to Section 5.12 of the Credit Agreement, certain Subsidiaries
of the Borrower that were not in existence or not a Subsidiary on the date of
the Credit Agreement are required to enter into the Pledge Agreement as a
Subsidiary Pledgor upon becoming a Subsidiary if such Subsidiary owns or
possesses property of a type that would be considered Collateral under the
Pledge Agreement. Section 24 of the Pledge Agreement provides that such
Subsidiaries may become Subsidiary Pledgors under the Pledge Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the "New Pledgor") is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Subsidiary
Pledgor under the Pledge Agreement in order to induce the Lenders to make
additional Loans and the Issuing Bank to issue additional Letters of Credit and
as consideration for Loans previously made and Letters of Credit previously
issued.
Accordingly, the Collateral Agent and the New Pledgor agree as follows:
SECTION 1. In accordance with Section 24 of the Pledge Agreement, the
New Pledgor by its signature below becomes a Pledgor under the Pledge Agreement
with the same force and effect as if originally named therein as a Pledgor and
the New Pledgor hereby agrees (a) to all the terms and provisions of the Pledge
Agreement applicable to it as a Pledgor thereunder and (b) represents and
warrants that the representations and warranties made by it as a Pledgor
thereunder are true and correct on and as of the date hereof. In furtherance of
the foregoing, the New Pledgor, as security for the payment and performance in
full of the Obligations (as defined in the Pledge Agreement and subject to the
second proviso of Section 1 of the Pledge Agreement), does hereby create and
grant to the Collateral Agent, its successors and assigns, for the benefit of
the Secured Parties, their successors and assigns, a security interest in and
lien on all of the New Pledgor's right, title and interest in and to the
Collateral (as defined in the Pledge Agreement) of the New Pledgor. Each
reference to a "Subsidiary Pledgor" or a "Pledgor" in the Pledge Agreement shall
be deemed to include the New Pledgor. The Pledge Agreement is hereby
incorporated herein by reference.
Page 27
SECTION 2. The New Pledgor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, 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.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Pledgor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. The New Pledgor hereby represents and warrants that set
forth on Schedule I attached hereto is a true and correct schedule of all its
Pledged Securities as of the date hereof.
SECTION 5. Except as expressly supplemented hereby, the Pledge
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Pledge Agreement shall not in any way be affected or impaired.
The parties hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 15 of the Pledge Agreement. All communications
and notices hereunder to the New Pledgor shall be given to it in care of the
Borrower.
SECTION 9. The New Pledgor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and
Page 28
disbursements of counsel for the Collateral Agent.
IN WITNESS WHEREOF, the New Pledgor and the Collateral Agent have duly
executed this Supplement to the Pledge Agreement as of the day and year first
above written.
[Name of New Pledgor],
by
-----------------------------------
Name:
Title:
Address:
CITICORP USA, INC., as Collateral Agent,
by
-----------------------------------
Name:
Title:
Schedule II to the
Pledge Agreement
CAPITAL STOCK
---------------------------------------------------------------------------------------------------------------------
LOAN PARTY PLEDGOR PERCENTAGE NUMBER CERTIFICATE
OF OF SHARES NUMBER
SHARES
---------------------------------------------------------------------------------------------------------------------
Texas Telecommunications, LP Alamosa Limited, LLC 99% N/A 1
Southwest PCS, L.P. Alamosa Delaware GP, LLC 1% 2
Alamosa Properties, L.P. Texas Telecommunications, LP 99% N/A 1
Alamosa Delaware GP, LLC 1% ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PCS, Inc. 99% N/A 1
Partnership Alamosa Wisconsin GP, LLC 1% 2
Alamosa Delaware GP, LLC Alamosa PCS, Inc. 100% N/A 2
Alamosa Wisconsin GP, LLC Alamosa PCS, Inc. 100% N/A 2
Alamosa Finance, LLC Alamosa PCS, Inc. 100% N/A 1
Alamosa Limited, LLC Alamosa PCS, Inc. 100% N/A 1
Alamosa PCS, Inc. Alamosa Holdings, LLC 100% 100 2
Alamosa Holdings, LLC Alamosa (Delaware), Inc. 100% N/A 1
▇▇▇▇▇▇▇ Wireless Communications Alamosa Holdings, LLC 100% N/A 1
L.L.C.
Washington Oregon Wireless, Alamosa Holdings, LLC 100% N/A 1
LLC
Alamosa (Wisconsin) Properties, Alamosa Wisconsin Limited 100% N/A 1
LLC Partnership
▇▇▇▇▇▇▇ Wireless Properties ▇▇▇▇▇▇▇ Wireless 100% N/A 1
L.L.C. Communications L.L.C.
Washington Oregon Wireless Washington Oregon Wireless, 100% N/A 1
Properties, LLC LLC
Washington Oregon Wireless Washington Oregon Wireless, 100% N/A 1
Licenses, LLC LLC
Southwest PCS, L.P. SWGP, LLC 1% N/A 1
SWLP, LLC 99% N/A 2
SWGP, LLC Alamosa Holdings, LLC 100% N/A 1
SWLP, LLC Alamosa Holdings, LLC 100% N/A 1
Page 29
Southwest PCS Properties, LLC Southwest PCS, L.P. 100% N/A 1
Southwest PCS Licenses, LLC Southwest PCS, L.P. 100% N/A 1
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
▇▇▇▇▇▇▇ Wireless
Communications, LLC $26,600,000 February 14, ▇▇▇▇ ▇/▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Wireless
Communications, LLC $11,000,000 February 14, 2001 N/A
30