Exhibit 10.3
AMENDMENT NO. 1 to
AMENDED AND RESTATED RECEIVABLES SALE AND CONTRIBUTION AGREEMENT
Dated as of June 16, 2003
THIS AMENDMENT NO. 1 (this "Amendment") is entered into as of June
16, 2003 by and among AT&T WIRELESS RECEIVABLES CORPORATION, a Delaware
corporation, each of the Subsidiaries of AT&T Wireless Services, Inc. signatory
hereto as a Selling Originator and SIERRA NEVADA WIRELESS RECEIVABLES
CORPORATION, a Delaware corporation (the "Purchaser").
PRELIMINARY STATEMENT
A. The parties hereto are parties to that certain Amended and
Restated Receivables Sale and Contribution Agreement dated as of February 28,
2003 (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "RSCA"). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the RSCA.
B. The parties hereto have agreed to amend the RSCA subject
to the terms and conditions hereinafter set forth.
C. The Program Agent and the Committed Purchasers have
agreed to consent to the amendment to the RSCA subject to the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth above,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to the RSCA.
1.1 Notwithstanding any contrary provisions contained in the RSCA,
effective as of the date hereof, subject to the satisfaction of the conditions
precedent set forth in Section 2 below, AT&T Wireless Services of Alaska, Inc.
shall cease to be a party to the RSCA as a Selling Originator.
1.2 Section 7.01(a) of the RSCA is hereby amended to delete the
first sentence thereof in its entirety and to replace the following sentence
therefor:
No amendment to or waiver of any provision of this Agreement nor
consent to any departure herefrom by the Selling Originators or
AWRC, shall in any event be effective unless the same shall be in
writing and signed by all parties hereto, and with the prior written
consent of the Program Agent and the Majority Committed
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Purchasers; provided, however, that this Agreement may be amended
solely to remove one or more Selling Originators as parties hereto
without the signature of each remaining Selling Originator.
1.3 Section 7.07 of the RSCA is hereby amended to add the following
provision as paragraph (c) thereto:
(c) Notwithstanding any other provision herein, each party
hereto and their assigns (and each of their employees,
representatives or other agents) may disclose to any and all
persons, without limitation of any kind, the U.S. tax treatment and
U.S. tax structure of this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided to such
party relating to such U.S. tax treatment and U.S. tax structure,
other than any information for which nondisclosure is reasonably
necessary in order to comply with applicable securities laws.
SECTION 2. Conditions Precedent. This Amendment shall become
effective and be deemed effective as of the date first above written upon the
Program Agent's having received (i) counterparts of this Amendment duly executed
by each party hereto and consented to by the Majority Committed Purchasers and
(ii) a Reaffirmation of Performance Undertaking in the form of Annex A hereto
duly executed by AT&T Wireless Services, Inc..
SECTION 3. Covenants, Representations and Warranties of the
Originators.
3.1 Upon the effectiveness of this Amendment, each Originator hereby
reaffirms all covenants, representations and warranties made by it, to the
extent the same are not amended hereby, in the RSCA and agrees that all such
covenants, representations and warranties shall be deemed to have been re-made
as of the effective date of this Amendment.
3.2 Each Originator hereby represents and warrants (i) that this
Amendment constitutes the legal, valid and binding obligation of such Person
enforceable against such Person in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and general principles of equity which may limit the availability of
equitable remedies and (ii) upon the effectiveness of this Amendment, no event
shall have occurred and be continuing which constitutes a Termination Event or
an event that with the passage of time or the giving of notice, or both, would
constitute a Termination Event.
SECTION 4. Reference to and Effect on the RSCA.
4.1 Upon the effectiveness of this Amendment, each reference in the
RSCA to "this Agreement," "hereunder," "hereof," "herein," "hereby" or words of
like import shall mean and be a reference to the RSCA as amended hereby, and
each reference to the RSCA in any other document, instrument or agreement
executed and/or delivered in connection with the RSCA shall mean and be a
reference to the RSCA as amended hereby.
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4.2 Except as specifically amended hereby, the RSCA and other
documents, instruments and agreements executed and/or delivered in connection
therewith shall remain in full force and effect and are hereby ratified and
confirmed.
4.3 The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy under the RSCA or
any of the other Facility Documents, nor constitute a waiver of any provision
contained therein, except as specifically set forth herein.
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 7. Headings. Section headings in this Amendment are included
herein for convenience or reference only and shall not constitute a part of this
Amendment for any other purpose.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereto duly authorized as of the date
first written above.
SIERRA NEVADA WIRELESS RECEIVABLES
CORPORATION, as Purchaser
By:________________________
Name:
Title:
AT&T WIRELESS RECEIVABLES
CORPORATION, INC.,
By:________________________
Name:
Title:
Signature Page to
Amendment No. 1 to
Amended and Restated Receivables Sale and Contribution Agreement
AB CELLULAR LA, LLC
ATLANTIC CELLULAR TELEPHONE OF DELAWARE, LLC
AT&T WIRELESS PCS, LLC
AT&T WIRELESS PCS OF CLEVELAND, LLC
AT&T WIRELESS PCS OF PHILADELPHIA, LLC
AT&T WIRELESS SERVICES OF ALASKA, INC.
AT&T WIRELESS SERVICES OF CALIFORNIA, LLC
AT&T WIRELESS SERVICES OF COLORADO, LLC
AT&T WIRELESS SERVICES OF FLORIDA, INC.
AT&T WIRELESS SERVICES OF HAWAII, INC.
AT&T WIRELESS SERVICES OF IDAHO, INC.
AT&T WIRELESS SERVICES OF MINNESOTA, INC.
AT&T WIRELESS SERVICES OF NEVADA, INC.
AT&T WIRELESS SERVICES OF OREGON, INC.
AT&T WIRELESS SERVICES OF SAN ANTONIO, INC.
AT&T WIRELESS SERVICES OF SAN DIEGO, LLC
AT&T WIRELESS SERVICES OF TULSA, INC.
AT&T WIRELESS SERVICES OF UTAH, INC.
AT&T WIRELESS SERVICES OF WASHINGTON, LLC
AWS NATIONAL ACCOUNTS, LLC
BAKERSFIELD CELLULAR, L.L.C.
BAY AREA CELLULAR TELEPHONE COMPANY
BOISE CITY CELLULAR PARTNERSHIP
FIRST CELLULAR GROUP OF SHREVEPORT, INC.
FORT XXXXXXX-XXXXXXXX CELLULAR TELEPHONE COMPANY
GREELEY CELLULAR TELEPHONE COMPANY
HOUSTON MTA, X.X.
XXXXXXXXXX ACQUISITION CORPORATION
LONGVIEW CELLULAR, INC.
XXXXX COMMUNICATIONS OF GAINESVILLE, TX, LP
each as a Selling Originator
By:________________________
Name:
Title:
Signature Page to
Amendment No. 1 to
Amended and Restated Receivables Sale and Contribution Agreement
XXXXX COMMUNICATIONS OF JOHNSTOWN, INC.
MCLANG CELLULAR, INC.
M C CELLULAR CORPORATION
METROPLEX TELEPHONE COMPANY,
MIDWEST CELLULAR TELEPHONE LIMITED
PARTNERSHIP,
MONROE CELLULAR, INC.,
NAPA CELLULAR TELEPHONE COMPANY
NEVADA COUNTY CELLULAR CORPORATION
NJ - 2 CELLULAR, INC.
NORTHEAST TEXAS CELLULAR TELEPHONE COMPANY
OK-3 CELLULAR, INC.
OK-5 CELLULAR, INC.
ORANGE COUNTY CELLULAR TELEPHONE CORP.
PISCATAQUA CELLULAR TELEPHONE OF
DELAWARE, LLC
XXXXXXX CELLULAR PARTNERSHIP
ROCHESTER CELLTELCO
XXXXXXX CELLULAR TELEPHONE COMPANY
SPOKANE CELLULAR TELEPHONE COMPANY
TEXARKANA CELLULAR PARTNERSHIP
TEXAS CELLULAR TELEPHONE COMPANY, L.P.
VANGUARD BINGHAMTON, INC.
VANGUARD CELLULAR PENNSYLVANIA, LLC
WEST VIRGINIA CELLULAR TELEPHONE CORP.
WHEELING CELLULAR TELEPHONE COMPANY
YAKIMA CELLULAR TELEPHONE COMPANY
YUBA CITY CELLULAR TELEPHONE COMPANY,
each as a Selling Originator
By:________________________
Name:
Title:
Signature Page to
Amendment No. 1 to
Amended and Restated Receivables Sale and Contribution Agreement
Consented to by:
CITICORP NORTH AMERICA, INC.,
as Program Agent
By:________________________
Name:
Title:
CITIBANK, N.A., as a Committed Purchaser
By:________________________
Name:
Title:
Signature Page to
Amendment No. 1 to
Amended and Restated Receivables Sale and Contribution Agreement
BANK OF AMERICA, N.A.,
as a Committed Purchaser
By:________________________
Name:
Title:
Signature Page to
Amendment No. 1 to
Amended and Restated Receivables Sale and Contribution Agreement
BNP PARIBAS,
as a Committed Purchaser
By:________________________
Name:
Title:
By:________________________
Name:
Title:
Signature Page to
Amendment No. 1 to
Amended and Restated Receivables Sale and Contribution Agreement
HSBC BANK USA,
as a Committed Purchaser
By:________________________
Name:
Title:
Signature Page to
Amendment No. 1 to
Amended and Restated Receivables Sale and Contribution Agreement
ASSET ONE SECURITIZATION, LLC,
as a Committed Purchaser
By:________________________
Name:
Title:
Signature Page to
Amendment No. 1 to
Amended and Restated Receivables Sale and Contribution Agreement
CANADIAN IMPERIAL BANK OF
COMMERCE, as a Committed Purchaser
By:________________________
Name:
Title:
By:________________________
Name:
Title:
Signature Page to
Amendment No. 1 to
Amended and Restated Receivables Sale and Contribution Agreement
SABW DRAFT
MARCH 13, 2003
REAFFIRMATION OF PERFORMANCE UNDERTAKING
Reference is hereby made to that certain Amended and Restated
Performance Undertaking (the "Undertaking"), dated as of February 28, 2003,
executed by AT&T Wireless Services, Inc., a Delaware corporation (the
"Provider") in favor of Citicorp North America, Inc., as Program Agent (the
"Program Agent"). Capitalized terms used and not otherwise defined herein shall
have the meanings set forth in the Undertaking.
The Provider hereby:
(i) acknowledges receipt of that certain Amendment No. 1, dated as
of June 16 2003 (the "Amendment"), to the Amended and Restated Receivables Sale
and Contribution Agreement dated as of dated as of February 28, 2003, by and
among AT&T Wireless Receivables Corporation, Inc., each of the Subsidiaries of
the Provider signatory thereto as a Selling Originator, and Sierra Nevada
Wireless Receivables Corporation;
(ii) reaffirms all of its obligations under the Undertaking in
favor of the Program Agent, for the benefit of itself, the Managing Agents
and the Purchasers; and
(iii) acknowledges and agrees that (A) the Undertaking remains in
full force and effect notwithstanding the Amendment and (B) the Undertaking is
hereby ratified and confirmed.
Date: June 16, 2003
AT&T WIRELESS SERVICES, INC.,
as Provider
By: __________________________
Name:
Title:
