Exhibit 10.55
EXECUTION COPY
FOURTH AMENDMENT AND WAIVER dated as of August 6,
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, as heretofore amended (the
"Credit Agreement"), among ALAMOSA HOLDINGS, INC.
("Superholdings"), 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 waived in the manner provided
for in this Amendment, and the Required 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. Amendments to Credit Agreement.
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(a) Section 1.01 of the Credit Agreement is hereby amended by (i) amending and
restating in its entirety each of the definitions set forth below:
"'Alamosa Delaware Indentures' means (i) the
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12 7/8% Senior Discount Notes Indenture, (ii) the 12 1/2% Senior Notes
Indenture and (iii) the New Senior Notes Indenture."
"'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
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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 aggregate amount
of the Lenders' Revolving Commitments is $25,000,000."
"'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 aggregate amount of the
Lenders' Term Commitments is $200,000,000."
(ii) adding the following new definitions in appropriate alphabetical
order:
"'New Senior Notes Indenture' means the indenture
under which the Senior Notes are issued and all other instruments,
agreements and other documents evidencing or governing the Senior Notes
or providing for any Guarantee or other right in respect thereof."
"'Senior Notes' means the Senior Notes due 2011 of
Alamosa Delaware issued in August 2001 in a single issuance and in an
aggregate principal amount not in excess of $200,000,000."
(b) Section 6.01(a) of the Credit Agreement is hereby amended
by deleting the word "and" at the end of clause (xiii), replacing the period at
the end of clause (xiv) with "; and" and inserting a new clause (xv) as follows:
"(xv) the Senior Notes in an aggregate principal amount not in
excess of $200,000,000 (and the related Guarantees) and 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 the Senior Notes
have a market rate of interest determined at the time of their pricing,
the Senior Notes do not have any scheduled amortization prior to
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the date that is six months after the Term Maturity Date, and the terms
and conditions of the Senior Notes and the New Senior Notes Indenture
(including with respect to covenants and Guarantees) are otherwise
substantially the same as those of the 12 1/2% Senior Notes and 12 1/2%
Senior Notes Indenture (except with respect to the interest escrow
account permitted under Section 6.02(a)(viii))."
(c) Section 6.02(a) of the Credit Agreement is hereby amended
by deleting the word "and" at the end of clause (vi), replacing the period at
the end of clause (vii) with "; and " and inserting a new clause (viii) as
follows:
"(viii) Liens on cash and cash equivalents in connection with
an interest escrow account securing obligations in respect of the
Senior Notes, provided that (A) such account is established at the time
of issuance of the Senior Notes and (B) such Liens extend only to Net
Proceeds of such issuance deposited in such account in an amount not
exceeding the amount of the initial four semiannual interest payments
on the Senior Notes, and to earnings thereon and proceeds thereof."
(d) Clause (iv) of Section 6.08(a) of the Credit Agreement is
hereby amended by inserting the words "the Senior Notes," immediately prior to
the words "the 12 7/8% Senior Discount Notes".
(e) Clause (v) of Section 6.08(b) of the Credit Agreement is
hereby amended and restated in its entirety as follows:
"(v) the exchange, in a registered public offering, for the 12
1/2% Senior Notes or the Senior Notes, as the case may be, of senior
notes of Alamosa Delaware in an equivalent principal amount having the
same terms and conditions as the 12 1/2% Senior Notes or the Senior
Notes, as applicable;".
(f) Section 6.10 of the Credit Agreement is hereby amended by
inserting the words "the New Senior Notes Indenture," immediately prior to the
words "the 12 7/8% Senior Discount Notes Indenture" in clause (ii)(B) of the
first proviso in such Section.
(g) Schedule 2.01 to the Credit Agreement is hereby replaced
by Schedule 2.01 attached hereto.
3. Waiver. Each of the undersigned Lenders
hereby expressly waives compliance by the Borrower with the
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notice requirement set forth in Section 2.07(d) with respect to the Borrower's
voluntary reduction of the Revolving Commitments and the Term Commitments as set
forth herein.
4. Consent. After giving effect to this Amendment, and the
prepayments of Term Loans and reductions in Commitments provided for herein, the
aggregate principal amounts of Xxxxxxx Term Loans, Southwest Term Loans and WOW
Term Loans shall be reduced to zero.
5. Effect of Amendments 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 under any other Loan Document, 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 expressly referred to
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.
6. 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) 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 and enforceable. The Credit Agreement as
amended by this
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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 Article III of 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.
7. Effectiveness. This Amendment shall become
effective (the "Amendment Effective Date") only upon satisfaction of the
following conditions prior to 10:00 a.m., Eastern Standard Time, on August 20,
2001:
(i) the Agent shall have received counterparts hereof duly
executed and delivered by the Alamosa Parties and the Required Lenders;
(ii) Alamosa Delaware shall have received gross cash proceeds
from the issuance of the Senior Notes of at least $146,000,000 and
shall have contributed to the Borrower the entire Net Proceeds thereof
less an amount equal to the initial four semiannual interest payments
on the Senior Notes, which amount shall have been placed in an interest
reserve escrow account in connection with the issuance of, and to
secure Alamosa Delaware's obligations under, the Senior Notes;
(iii) the Borrower shall have prepaid Term Loans
ratably in an aggregate principal amount of at least
$64,400,000;
(iv) to the extent Alamosa Delaware receives gross cash proceeds in
excess of $150,000,000 from the issuance of Senior Notes, (A) the
Borrower shall have applied the Net Proceeds in respect of such excess
(less escrowed interest in respect of such excess as contemplated by
clause (ii) above) to prepay Term Loans and permanently reduce Term
Commitments ratably and in amounts determined by the Administrative
Agent to be substantially proportionate to the Term Loans and Term
Commitments existing immediately prior to the Amendment Effective Date;
and (B) the Revolving Commitments shall be permanently reduced in an
amount equal to any
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remaining Net Proceeds (less such escrowed interest) after application
thereof pursuant to clause (A) less an amount equal to the reduction in
Term Commitments required pursuant to clause (A); and
(v) the Agent shall have received evidence reasonably
satisfactory to it that, as of the Amendment Effective Date, Total
Borrower Capital is equal to at least $625,931,000 plus the amount
contributed to the Borrower pursuant to clause (ii) above.
8. 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 & Xxxxx, counsel for the Agent.
9. 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.
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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
/s/ Xxxxxxx X. Xxxxx
----------------------
Name:
Title:
ALAMOSA (DELAWARE), INC.,
by
/s/ Xxxxxxx X. Xxxxx
----------------------
Name:
Title:
ALAMOSA HOLDINGS, LLC,
by
/s/ Xxxxxxx X. Xxxxx
----------------------
Name:
Title:
CITICORP USA, INC., individually and
as Administrative Agent,
by
/s/ Xxxx X. Judge
------------------------
Name: Xxxx X. Judge
Title: Vice President
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SIGNATURE PAGE to
FOURTH AMENDMENT AND WAIVER,
dated as of August 6, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Fourth Amendment and Waiver:
Name of Institution: Bank of Novia Scotia
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by /s/Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
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SIGNATURE PAGE to
FOURTH AMENDMENT AND WAIVER,
dated as of August 6, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Fourth Amendment and Waiver:
Name of Institution: CoBank ACB
--------------------------------
by /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
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SIGNATURE PAGE to
FOURTH AMENDMENT AND WAIVER,
dated as of August 6, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Fourth Amendment and Waiver:
Name of Institution: Export Development Corporation
--------------------------------------
by /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Loan Asset Manager
by /s/ Xxxx Xx Xxxx
------------------------------------
Name: Xxxx Xx Xxxx
Title: Loan Asset Manager
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SIGNATURE PAGE to
FOURTH AMENDMENT AND WAIVER,
dated as of August 6, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Fourth Amendment and Waiver:
Name of Institution: First Union National Bank
---------------------------------
by /s/ Xxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxx X. Xxxxx
Title: Asst. Vice President
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SIGNATURE PAGE to
FOURTH AMENDMENT AND WAIVER,
dated as of August 6, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Fourth Amendment and Waiver:
Name of Institution: Fortis Capital Corp.
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by /s/ Xxxx X. XxXxxxxxx
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Name: Xxxx X. XxXxxxxxx
Title: Managing Director
by /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Assistant Vice President
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SIGNATURE PAGE to
FOURTH AMENDMENT AND WAIVER,
dated as of August 6, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Fourth Amendment and Waiver:
Name of Institution: IBM Credit Corporation
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by /s/ Xxxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Manager, Commercial
Financing Americas
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SIGNATURE PAGE to
FOURTH AMENDMENT AND WAIVER,
dated as of August 6, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Fourth Amendment and Waiver:
Name of Institution: Societe Generale
---------------------------------
by /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Director
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SIGNATURE PAGE to
FOURTH AMENDMENT AND WAIVER,
dated as of August 6, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Fourth Amendment and Waiver:
Name of Institution: Toronto Dominion (Texas), Inc.
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by /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President
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SIGNATURE PAGE to
FOURTH AMENDMENT AND WAIVER,
dated as of August 6, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Fourth Amendment and Waiver:
Westdeutsche Landesbank
Name of Institution: Girozentrale, New York Branch
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by /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Director
by /s/ Xxxxx Xx
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Name: Xxxxx Xx
Title: Associate Director
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SCHEDULE 2.01
ALAMOSA HOLDINGS, LLC
$225,000,000 SENIOR SECURED CREDIT FACILITIES
LENDER REVOLVING CREDIT TERM LOAN
------ ---------------- ---------
Citicorp USA, Inc. $2,861,201.32 $19,077,458.03
Toronto Dominion (Texas), Inc. $3,064,123.37 $22,442,633.44
Export Development Corporation $2,840,909.09 $20,807,739.61
First Union National Bank $2,435,064.93 $17,835,205.38
The Bank of Nova Scotia $2,435,064.93 $17,835,205.38
Fortis Capital Corp. $2,435,064.93 $17,835,205.38
CoBank, ACB $2,029,220.78 $14,862,671.15
General Electric Capital Corporation $2,029,220.78 $14,862,671.15
Societe Generale $2,029,220.78 $14,862,671.15
Westdeutsche Landesbank Girozentrale, New York $2,029,220.78 $14,862,671.15
Xxxxxx
Xxxxxxxx Floating Rate Trust* - $13,513,513.51
IBM Credit Corporation $811,688.31 $5,945,068.46
Xxxxxxxxxxx Senior Floating Rate Fund* - $3,568,097.02
Franklin Floating Rate Master Series* - $1,689,189.19
----------------------------------------------------------- ---------------------- ------------------------
TOTAL COMMITMENTS $25,000,000.00 $200,000,000.00
*Fully Funded
