EXECUTION COPY
EIGHTH AMENDMENT AND WAIVER, dated as of
October 27, 2003 (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"),
and CITICORP USA, INC., as Administrative Agent and
Collateral Agent (the "Administrative Agent").
WHEREAS pursuant to the Combined Offering Circular, Consent
Solicitation and Disclosure Statement Soliciting Acceptances of a Prepackaged
Plan of Reorganization dated September 12, 2003 (the "Initial Offering
Circular"), as amended on October 15, 2003 (the "Offering Circular"), the
Alamosa Parties have commenced Exchange Offers and a Consent Solicitation (each
as defined in the Offering Circular);
WHEREAS, pursuant to the Seventh Amendment to the Credit
Agreement dated as of September 3, 2003 (the "Seventh Amendment"), the Required
Lenders, subject to satisfaction of the conditions set forth in Section 6 of the
Seventh Amendment, have agreed to certain amendments, consents and waivers,
which conditions include consummation of the Exchange Offers and the other
Restructuring Transactions (as defined in the Offering Circular);
WHEREAS, the Exchange Offers are conditioned upon, among other
things, at least 97% of the outstanding aggregate principal amount of each
series of the Existing Notes (as defined in the Offering Circular) being validly
tendered pursuant to the Offering Circular and not withdrawn or such lesser
percentage (but not less than 95%) that may be agreed to by the Alamosa Parties
(the "Minimum Tender Condition");
WHEREAS, as set forth in the Offering Circular, in the event
that the other Restructuring Transactions are not consummated because the
Minimum Tender Condition for the Exchange Offers is not met or otherwise, the
Alamosa Parties may seek to effect the Restructuring Transactions by means of
filing one or more voluntary petitions for relief under Chapter 11 of the United
States Bankruptcy Code (the "Filings") and seeking the approval of a United
States Bankruptcy Court (a "Bankruptcy Court") of the Restructuring Transactions
through confirmation of a "prepackaged" plan of reorganization under Chapter 11
of the United States Bankruptcy Code a form of which is attached as Annex I to
the Offering Circular (the "Prepackaged Plan"; and any Bankruptcy Court cases
with respect thereto the "Cases");
WHEREAS, the amendment dated October 15, 2003 to the Initial
Offering Circular amended the terms of the Restructuring Transactions, including
the Prepackaged Plan, in a manner inconsistent with the contemplated terms
thereof set forth in Annex A to the Seventh Amendment, and this Amendment is
intended to supersede the Seventh Amendment in all respects; and
WHEREAS, in the event that either the Exchange Offers are
completed or the Alamosa Parties determine to effect the Restructuring
Transactions through the Prepackaged
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Plan, the Alamosa Parties have requested that the Required Lenders (i) agree to
permit the Restructuring Transactions to be consummated pursuant to the Exchange
Offers or the Prepackaged Plan (and grant certain waivers and consents in
connection therewith), and (ii) further agree, pursuant to this Amendment, to
amend the Credit Agreement as set forth below, and the Required Lenders are
willing to agree to such waivers, consents and amendments on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not
defined herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. Effectiveness of Amendments to the Credit Agreement
and Consent to Sprint Amendments. (a) Upon the occurrence of the Eighth
Amendment Effective Date as provided in Section 5(b) hereof, the Credit
Agreement shall be amended as set forth in Annex A hereto; and (b) upon the
effectiveness of the amendments (the "Sprint Amendments") to the Sprint
Agreements entered into as of September 12, 2003 in accordance with the
provisions thereof, the Lenders hereby consent to such Sprint Amendments, and
waive any Default that may be deemed to have occurred under Section 6.11 of the
Credit Agreement solely as a result of entering into the Sprint Amendments;
provided that the representation and warranty set forth in Section 4(g) hereof
is true and correct.
SECTION 3. Consent and Waiver; Covenants. (a) If the
Restructuring Transactions are to be effected through the Prepackaged Plan, as
of the date of Filing, the Lenders hereby:
(i) subject to the continuing conditions and agreements set
forth in clause (b) below, waive (1) any Default or Event of Default
under clauses (i) and (j) of Article VII of the Credit Agreement, in
each case, arising solely as a result of the Filings to effect the
Restructuring Transactions through the Prepackaged Plan, (2) any
Default or Event of Default under the Credit Agreement or any other
Loan Document (x) attributable solely to the Filings or (y) resulting
from the failure to take any actions the Alamosa Parties or any of
their Subsidiaries are not permitted to take by virtue of their status
as debtors in the Cases other than in the case of this clause (y) any
failure to pay principal, interest or fees to the Administrative Agent
or the Lenders as provided in the Cash Collateral Order (any such event
giving rise to a Default or Event of Default described in clauses (x)
and (y), a "Filing Default Event"), and (3) any Default or Event of
Default under clause (g) of Article VII of the Credit Agreement
attributable solely to the occurrence of an event or condition or the
result thereof contemplated by such clause (g) with respect to any
Material Indebtedness arising solely from a Filing Default Event;
(ii) consent to the entry by the Bankruptcy Court of a
Stipulated Order Authorizing Consensual Use of Cash Collateral And
Granting Adequate Protection (the "Cash Collateral Order") that
includes the customary protections for an order of this nature,
including without limitation, the order of the Bankruptcy Court that,
as adequate protection for any diminution in value of the Lenders'
interest in the Collateral, authorizes and requires the post-petition
payment by the Alamosa Parties of (i) any and
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all pre-petition amounts due and payable to the Lenders under the Loan
Documents, (ii) interest, at the non-default rate, in the manner and in
accordance with the terms of the Loan Documents, and (iii) any fees,
costs and expenses payable by the Alamosa Parties pursuant to the Loan
Documents, including the fees and disbursements of counsel, financial
advisors and consultants to the Administrative Agent for and on behalf
of the Lenders and is otherwise is in form and substance satisfactory
to the Administrative Agent.
(b) If the Restructuring Transactions are to be effected
through the Prepackaged Plan, from and after the date of Filing, the waivers
and, to the extent contemplated thereby, the consents set forth in clause (a)
above are subject to the continuing satisfaction of the following conditions,
and the failure of any such condition to be satisfied at any time shall, upon
notice from the Administrative Agent at the direction of the Required Lenders,
result in the termination or revocation of any such waiver or consent: (i) each
of the representations and warranties set forth in Section 4 shall be, and
continue to be, true and correct (except to the extent any such representation
and warranty expressly relates to a specific date, in which case, each such
representation and warranty shall have been or will be true and correct as of
such specific date) and the Alamosa Parties shall be in full compliance with the
covenant set forth in clause (c) below, (ii) no Termination Event (as defined in
the Cash Collateral Order) or any other event that entitles the Lenders or the
Administrative Agent to terminate the Alamosa Parties' rights to use of the cash
collateral shall have occurred, (iii) neither any Alamosa Party shall have
sought entry by the Bankruptcy Court of, nor shall the Bankruptcy Court have
ordered, any relief that, in the reasonable judgment of the Administrative
Agent, is or could be adverse to the Lenders in any material respect or in the
reasonable determination of the Administrative Agent is inconsistent with the
terms of the Prepackaged Plan or the transactions contemplated thereby as
described in the Offering Circular in any material respect, (iv) no Alamosa
Party shall have sought Bankruptcy Court approval for, nor shall the Bankruptcy
Court have approved any, debtor-in-possession financing and none of the Alamosa
Parties' financings or obligations shall be secured by any of the Collateral or
be ranked senior to, or pari passu with, the Alamosa Parties' obligations under
the Loan Documents by a Lien senior to, or pari passu with, the Administrative
Agent's Liens on the Collateral except as expressly permitted by the Credit
Agreement, (v) none of the Alamosa Parties shall have (A) requested that the
Bankruptcy Court issue any order that impairs or changes the Administrative
Agent's or any Lender's rights, remedies, claims, powers, benefits, privileges,
liens, security interest or protections, (B) acquiesced in or requested an order
authorizing the use, sale, or other disposition of the Collateral except as
expressly permitted by the Credit Agreement, or (C) obtained credit or incurred
debt or their respective estates shall have become secured by any of the
Collateral, without the prior written consent of the Lenders, (vi) at least
two-thirds in amount and more than a majority in number of holders of each of
(x) the Senior Notes (as defined in the Prepackaged Plan) and (y) the Senior
Discount Notes (as defined in the Prepackaged Plan) that voted on the
Prepackaged Plan (in each case, the "Approved Threshold") shall have voted in
favor of the Prepackaged Plan and shall not have withdrawn any such votes, which
would result in the Approved Threshold no longer being satisfied, and (vii) no
event (including, without limitation, the entry of an order by any court or
other competent governmental or regulatory authority making illegal or otherwise
restricting, preventing or prohibiting the Prepackaged Plan) shall have occurred
that, in the reasonable
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judgment of the Required Lenders, could not reasonably be expected to be
remedied by the Alamosa Parties on or prior to March 31, 2004 (such date, the
"Waiver Expiration Date").
(c) Notwithstanding anything to the contrary in the Offering
Circular or the Prepackaged Plan, each of the Alamosa Parties covenants and
agrees with the Lenders that it shall not waive, amend or modify any material
term or provision of the Exchange Offers or the Prepackaged Plan (regardless of
whether expressly permitted under the Prepackaged Plan) without the approval or
consent of the Required Lenders; provided that no approval or consent shall be
required for any waiver, amendment or modification solely to the extent
providing for or permitting the issuance of additional common stock of
Superholdings to the extent permitted under the Credit Agreement.
(d) Notwithstanding the foregoing consents and waivers in this
Section 3 and regardless of whether any Default or Event of Default is
continuing, until the occurrence of the Eighth Amendment Effective Date, the
Borrower and each Alamosa Party hereby agree not to request a Borrowing under
Section 2.03 of the Credit Agreement or otherwise or request the issuance of a
Letter of Credit under Section 2.04 of the Credit Agreement, and the Borrower
and each other Alamosa Party hereby acknowledges and agrees that the Lenders and
the Issuing Bank shall have no obligation to make any Loan or issue any Letter
of Credit under the Credit Agreement until such time.
(e) If the Restructuring Transactions were effected through
the Prepackaged Plan, upon the occurrence of the Eighth Amendment Effective
Date, the waiver set forth in clause (a)(i) above shall become unconditional and
irrevocable solely to the extent the Defaults and Events of Default subject to
such waiver arose as a result of a Filing Default Event; provided, that such
waiver shall be limited to such Defaults and Events and shall not (or be deemed
to) apply or extend to, or constitute a waiver of, any other Default or Event of
Default, including, without limitation, (i) otherwise arising in connection with
the Cases, the Prepackaged Plan or the Restructuring Transactions or (ii)
relating to events or conditions (other than Filings) existing during pendency
of the Cases and discovered or disclosed after the occurrence of the Eighth
Amendment Effective Date.
SECTION 4. Representations and Warranties. Each of the Alamosa
Parties hereby represents and warrants to the Administrative Agent and the
Lenders as follows:
(a) If the Restructuring Transactions are to be effected
through (i) the Exchange Offers, after giving effect to the waiver set forth in
Section 2, and (ii) the Prepackaged Plan, after giving effect to the waivers set
forth in Sections 2 and 3, in any such case, 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
Authority) in order to be effective and enforceable. Upon the effectiveness of
this Amendment, the Credit Agreement as amended by this Amendment will
constitute 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,
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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) As of each of (i) the date of the effectiveness of this
Amendment pursuant to Section 5(a), (ii) if applicable, the time of the Filings
(after giving effect to the consent and waivers as provided in Section 3) and
(iii) the Eighth Amendment Effective Date (after giving effect to the
amendments, the consents and waivers as provided in Section 2 and, if
applicable, Section 3), all representations and warranties of the Alamosa
Parties contained in Article III of the Credit Agreement are true and correct in
all material respects (other than (x) in the case of clauses (ii) and (iii), if
applicable, those representations or warranties that are not true and correct
solely as a result of a Filing Default Event and (y) those representations or
warranties expressly made only on and as of the Restatement Effective Date);
provided, that the representations and warranties contained in this clause (c)
shall only be made or deemed made on the dates set forth in clauses (i), (ii)
(if applicable) and (iii).
(d) If the Restructuring Transactions are to be effected
through the Prepackaged Plan, from and after the date of the Filings, the
Filings have been duly authorized by all necessary corporate, stockholder and
other action and will not require any registration with, consent or approval of,
notice to or action by, any Person (including any Governmental Authority).
(e) If the Restructuring Transactions are to be effected
through the Prepackaged Plan, from and after the date of the Filings, holders of
each of Senior Notes and Senior Discount Notes shall have voted in favor of the
Prepackaged Plan such that, in each case, the Approved Threshold shall be and
remain satisfied.
(f) There have been no modifications to the material terms or
provisions of the Exchange Offers as described in the Offering Circular or the
Prepackaged Plan from the form set forth in Annex I to the Offering Circular, in
each case, except as approved by the Required Lenders.
(g) The amendments effected, or to be effected, pursuant to
the Sprint Amendments are substantially as contemplated by the related letter of
intent dated August 1, 2003 and as disclosed in the Offering Circular.
(h) (i) No termination events under the Sprint Agreements or
Sprint Amendments have occurred (including, if applicable, as a result of the
Filings), (ii) no default or breach that is material in nature has occurred and
is continuing under the Sprint Agreements or the Sprint Amendments and (iii) no
person shall have asserted any of the foregoing, in each case, except as
expressly waived in writing by the parties thereto (copies of which have been
delivered to the Lenders) and the Alamosa Parties continue to have all rights,
interests, powers and benefits thereunder subject only to continuing compliance
with the provisions thereof.
SECTION 5. Effectiveness. (a) This Amendment shall become
effective as of the date first above written when, and only when the
Administrative Agent shall have received counterparts of this Amendment executed
by the Alamosa Parties and the Required Lenders or,
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as to any of such Required Lenders, advice satisfactory to such Administrative
Agent that such Required Lender has executed this Amendment.
(b) The amendments, consents and waivers set forth in Section
2 shall become effective only upon satisfaction of the following conditions
(unless otherwise waived or approved by the Required Lenders) on or prior to the
Waiver Expiration Date (the date of such effectiveness being referred to as the
"Eighth Amendment Effective Date"):
(i) The Administrative Agent shall have received counterparts
hereof duly executed and delivered by the Alamosa Parties and the
Required Lenders.
(ii) If the Restructuring Transactions are to be effected
through the Prepackaged Plan, the Bankruptcy Court shall have entered a
confirmation order pursuant to Section 1125 of the United States
Bankruptcy Code in form and substance reasonably satisfactory to the
Administrative Agent, which provides, among other things, that (x)
notwithstanding paragraphs 3.5 and 6.8 of the Prepackaged Plan, the
Alamosa Parties waive all rights and defenses both legal and equitable
with respect to any actions, claims, suits or other losses arising in
connection with the Credit Agreement, any Loan Document and the
transactions contemplated thereby that occurred on or prior to the
Confirmation Date (as defined in the Prepackaged Plan), including, but
not limited to, all rights with respect to legal and equitable defenses
to setoff or recoupment, and (y) notwithstanding Article XI of the
Prepackaged Plan, the bankruptcy court will not retain jurisdiction to
resolve any cases, controversies, disputes, or suits in connection with
the Credit Agreement, any Loan Document or the transactions
contemplated thereby.
(iii) All of the conditions precedent to either, as applicable
(A) the consummation of the Exchange Offer, including, without
limitation, satisfaction of the Minimum Tender Condition, or (B) the
occurrence of the Effective Date (as defined in the Prepackaged Plan),
other than subparagraph (e) of Section 9.2 of the Prepackaged Plan,
have occurred or been satisfied; provided that, in the case of the
Prepackaged Plan, such conditions shall not have been satisfied by
waiver pursuant to Section 9.3 of the Prepackaged Plan.
(iv) If the Restructuring Transactions are to be effected
through (A) the Exchange Offers, the Restructuring Transactions shall
have been consummated (or shall be consummated simultaneously with the
effectiveness of the Eighth Amendment Effective Date) substantially on
the terms set forth in the Offering Circular and all tendered Existing
Notes shall have been exchanged in accordance with the Exchange Offers,
and (B) the Prepackaged Plan, the Restructuring Transactions shall have
been consummated (or shall be consummated simultaneously with the
effectiveness of the Eighth Amendment Effective Date) substantially on
the terms set forth in the Prepackaged Plan and all of the Existing
Notes shall have been cancelled. The terms of the 2003 Senior Notes,
2003 Senior Discount Notes and Convertible Preferred Stock shall be
substantially as set forth in (and not less favorable to the Lenders in
any material respect than those set forth in) the Offering Circular.
The Alamosa Parties shall have delivered to the Administrative Agent
copies of the indentures relating to the 2003 Senior Notes and the 2003
Senior Discount Notes and the certificate of designation for the
Convertible Preferred Stock, in each case certified by a Financial
Officer of the Borrower as being
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complete and correct, and such documents, certificates and instruments
shall comply with the applicable requirements of the Credit Agreement
and otherwise be reasonably satisfactory to the Administrative Agent
(it being understood that the terms of the Offering Circular describing
the 2003 Senior Notes, the 2003 Senior Discount Notes and the
Convertible Preferred Stock are satisfactory to the Administrative
Agent).
(v) The Sprint Amendments shall remain in effect or have
become effective (or shall become effective simultaneously with the
effectiveness of the Eighth Amendment Effective Date) with the same
terms and conditions set forth in such Amendments on the date hereof;
and the Lenders shall have been furnished with certified copies of the
definitive documentation for the Sprint Amendments.
(vi) The Administrative Agent shall have received from outside
and internal counsel to the Borrower such favorable opinions, dated the
Eighth Amendment Effective Date, relating to this Amendment, the
Exchange Offers, the Restructuring Transactions (whether effected
through the Exchange Offers or the Prepackaged Plan, as the case may
be), the Sprint Amendments and any other transactions contemplated
hereby, in form and substance reasonably satisfactory to the
Administrative Agent, as the Administrative Agent may reasonably
request (and the Alamosa Parties hereby direct such counsel to deliver
such opinions).
(vii) After giving effect to the amendments set forth in Annex
A hereto and the consents and waivers as provided in Sections 2 and, if
applicable, 3, each of the representations and warranties set forth in
Section 4 hereof shall be true and correct on and as of the Eighth
Amendment Effective Date, and the Administrative Agent shall have
received such certificates of Financial Officers as to the satisfaction
of the conditions to effectiveness of this Amendment as the
Administrative Agent shall reasonably request and shall have received
such documents and instruments relating to the authorization of this
Amendment, the Exchange Offers or the Prepackaged Plan, as the case may
be, the Restructuring Transactions, the Sprint Amendments and any other
transactions contemplated hereby as it may reasonably request.
(viii) After giving effect to the amendments set forth in
Annex A hereto and the consent and waivers as provided in Sections 2
and 3, no Default or Event of Default shall have occurred and be
continuing
(ix) The Lenders shall have been furnished with a revised
detailed business plan and financial model of the Borrower, giving
effect to this Amendment, the Exchange Offers or the Prepackaged Plan,
as the case may be, the Restructuring Transactions, the Sprint
Amendments and the other transactions contemplated hereby, which shall
cover periods through 2008 on a quarterly basis, and which shall be
reasonably satisfactory to the Required Lenders. Each Lender that has
executed this Amendment acknowledges that it has either received such
business plan and financial model in form and content satisfactory to
such Lender or has waived such condition.
(x) The Borrower shall have paid to the Administrative Agent,
for the accounts of the Lenders executing this Amendment, an amendment
fee equal to .625% of such
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Lender's aggregate Revolving Commitments (drawn or undrawn) and
outstanding Term Loans. Such payments shall be made by wire transfer of
immediately available funds to the Administrate Agent.
(xi) The Borrower shall have paid to the Administrative Agent,
or reimbursed the Administrative Agent for, all fees and expenses,
including, without limitation, all out-of-pocket expenses of the
Administrative Agent, to the extent invoiced, incurred by the
Administrative Agent and the Lenders, that are subject to payment or
reimbursement pursuant to Section 8 of this Amendment or Section 9.03
of the Credit Agreement.
SECTION 6. Termination of Amendment. This Amendment
(including, without limitation, any waivers or consents hereunder) shall (a)
terminate automatically and without further action, (i) in the case of the
Exchange Offers, the Exchange Offers and the Restructuring Transactions shall
not have been consummated by March 31, 2004, and (ii) in the case of the
Prepackaged Plan, (A) in the event that the Prepackaged Plan has not been
confirmed by the Bankruptcy Court on or before the Waiver Expiration Date, (B)
if any of the Alamosa Parties ceases to operate all or substantially all of its
business as presently conducted, (C) in the event the Bankruptcy Court shall
have (w) ordered the appointment of a trustee or an examiner with expanded or
special powers to operate any of the Alamosa Parties' businesses, (x) dismissed
the bankruptcy case, (y) converted the bankruptcy case to a case under Chapter 7
of the United States Bankruptcy Code, or (z) granted any relief from the
automatic stay, which allows any entity to proceed against any material asset of
any of the Alamosa Parties, or (D) the Prepackaged Plan shall have been
withdrawn or revoked; or (b) in the case of the Prepackaged Plan, terminate, at
the request of the Required Lenders, if any of the conditions or agreements set
forth in Section 3(b) becomes unsatisfied prior to confirmation of the
Prepackaged Plan by the Bankruptcy Court.
SECTION 7. Effect of Amendment. 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 or the Administrative Agent under the Credit
Agreement or 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 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 or any other Loan Document in similar or different circumstances. This
Amendment shall apply and be effective only with respect to the provisions of
the Credit Agreement set forth herein. After the Eighth Amendment Effective
Date, 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.
SECTION 8. Expenses. The Alamosa Parties, jointly and
severally, agree to reimburse the Administrative Agent for its out-of-pocket
expenses in connection with this Amendment and the transactions contemplated
hereby (including, without limitation, in connection with the Filings, the
Prepackaged Plan and the Restructuring Transactions, whether
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or not filed, approved, confirmed or consummated), including the reasonable
fees, charges and disbursements of Shearman & Sterling LLP, special bankruptcy
counsel for the Administrative Agent, Xxxxxxxx, Xxxxxx & Finger P.A., special
Delaware bankruptcy counsel for the Administrative Agent, and Cravath, Swaine &
Xxxxx LLP, counsel for the Administrative Agent. In addition, all such fees and
expenses constitute amounts payable or reimbursable under Section 9.03 of the
Credit Agreement.
SECTION 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their duly authorized officers as
of the day and year first above written.
ALAMOSA HOLDINGS, INC.,
by /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: CFO
ALAMOSA (DELAWARE) INC.,
by /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: CFO
ALAMOSA HOLDINGS, LLC,
by /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: CFO
EACH OF THE GRANTORS LISTED ON
SCHEDULE I HERETO
by /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Authorized Officer - CFO
CITICORP USA, INC.,
individually and as Agent
by /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: CITICORP USA, INC.
by /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx
Title: Vice President
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: THE BANK OF NOVA SCOTIA
by /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signatory
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: FORTIS CAPITAL CORP.
by /s/ Xxxxxxxx De Lathauez
-----------------------------
Name: Xxxxxxxx De Lathauez
Title: Vice President
by /s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: DEUTSCHE BANK TRUST COMPANY AMERICAS
BY: DB SERVICES NEW JERSEY, INC.
by /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: GENERAL ELECTRIC CAPITAL CORPORATION
by /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Manager, Operations
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: SOCIETE GENERALE
by /s/ Xxxxxx Xxxxxx
-----------------------------
Name: Xxxxxx Xxxxxx
Title: Director
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: CARLYLE LOAN OPPORTUNITY FUND
by /s/ Xxxxx Xxxx
-----------------------------
Name: Xxxxx Xxxx
Title: Principal
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: CARLYLE HIGH YIELD PARTNERS III, LTD.
by /s/ Xxxxx Xxxx
-----------------------------
Name: Xxxxx Xxxx
Title: Principal
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: ORIX FINANCE CORP. I
by /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Authorized Representative
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: HARBOURVIEW CLO IV, LTD.
by /s/ Xxxx Xxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: BARCLAYS
by /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: XXXXXXXXXXX SENIOR FLOATING RATE FUND
by /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Manager
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: COBANK, ACB
by /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President, Special Assets
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: CREDIT SUISSE FIRST BOSTON
by /s/ Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Assistant Vice President
by /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Assistant Vice President
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: TORONTO DOMINION (TEXAS) INC.
by /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx
Title: Vice President
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: NOMURA BOND & LOAN FUND
by /s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: WESTLB AG, NEW YORK BRANCH
by /s/ Xxxxx Xx
-----------------------------
Name: Xxxxx Xx
Title: Director
by Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: Manager
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: XXXXXX XXXXXXX SENIOR FUNDING INC.
by /s/ Xxxxx Xxxxxx
-----------------------------
Name: /s/ Xxxxx Xxxxxx
Title: Vice President
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: EXPORT DEVELOPMENT CANADA
by /s/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: Loan Asset Manager
by /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: Loan Portfolio Manager
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: CLYDESDALE CLO 2001-1, LTD
by /s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
SIGNATURE PAGE to
EIGHTH AMENDMENT AND WAIVER,
dated as of October 27, 2003
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution: CERBERUS PARTNERS, L.P.
BY: CERBERUS ASSOCIATES LLC
by /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
SCHEDULE I
Texas Telecommunications, LP
Alamosa Properties, L.P.
Alamosa Wisconsin Limited Partnership
Alamosa (Wisconsin) Properties, LLC
Alamosa Delaware GP, LLC Alamosa Wisconsin GP, LLC Alamosa Finance, LLC Alamosa
Limited, LLC Alamosa PCS, Inc.
Alamosa Holdings, LLC
Alamosa Missouri, LLC
Alamosa Missouri Properties, LLC
Washington Oregon Wireless, LLC
Washington Oregon Wireless Properties, LLC Washington Oregon Wireless Licenses,
LLC Southwest PCS, L.P.
SWGP, LLC
SWLP, LLC
Southwest PCS Properties, LLC
Southwest PCS Licenses, LLC
ANNEX A
AMENDMENTS TO CREDIT AGREEMENT
------------------------------
Upon the occurrence of the Eighth Amendment Effective Date,
the Credit Agreement is amended as follows:
(a) Section 1.01. Section 1.01 of the Credit Agreement is
amended by (i) amending the definition of "Alamosa Delaware Indentures" to read
as follows:
"'Alamosa Delaware Indentures' means the 2003 Senior Notes
Indenture and the 2003 Senior Discount Notes Indenture and, in the
event the Restructuring Transactions have been consummated pursuant to
the Exchange Offers, the 12 7/8% Senior Discount Notes Indenture, the
12 1/2% Senior Notes Indenture and the New Senior Notes Indenture."
(ii) adding the following definitions in correct alphabetical
order:
"'Convertible Preferred Stock' means the Convertible Preferred
Stock issued by Superholdings in accordance with the Exchange Offers or
the Prepackaged Plan, in each case, having substantially the terms set
forth in the Offering Circular."
"'Dividend Preferred Stock' means the Series Class C
Convertible Preferred Stock issued by Superholdings as a dividend
payment on the Convertible Preferred Stock or other Dividend Preferred
Stock as specified in the certificates of designation (as in effect on
the Eighth Amendment Effective Date) establishing the Convertible
Preferred Stock and the Dividend Preferred Stock and having identical
terms to the Convertible Preferred Stock (other than the conversion
price)."
"'Eighth Amendment' means the Eighth Amendment and Waiver
dated as of October 27, 2003, to this Agreement."
"'Eighth Amendment Effective Date' means the date on which the
Eighth Amendment became effective in accordance with the terms
thereof."
"'Exchange Offers' means the "Exchange Offers" defined in the
Offering Circular."
"'Minimum Cash Amount' means, on any date, an amount equal to
the sum of (i) $10,000,000 and (ii) the cumulative aggregate amount of
Investments made pursuant to Section 6.04(l) on or after the Eighth
Amendment Effective Date."
"'Offering Circular' means the Combined Offering Circular,
Consent Solicitation and Disclosure Statement Soliciting Acceptances of
a Prepackaged Plan of Reorganization of Alamosa Delaware and
Superholdings dated September 12, 2003, as amended."
"'Prepackaged Plan' means the "Prepackaged Plan" defined in
the Eighth Amendment upon the effectiveness of such Prepackaged Plan on
the terms and conditions set forth in the Eighth Amendment."
1
"'Restructuring Transactions' means the transactions referred
to in the Offering Circular and defined therein as the "Restructuring
Transactions", including, without limitation, (a) the exchange or
cancellation of the 12?% Senior Discount Notes and Senior Notes for
2003 Senior Discount Notes and 2003 Senior Notes, respectively, (b) the
Sprint Amendments (as defined in the Offering Circular), and (c) the
amendments to this Agreement pursuant to the Eighth Amendment."
"'Surplus Cash Amount' means, on any date, an amount equal to
the lesser of (i) $40,000,000 and (ii) the excess, if any, of (x) the
amount of cash and Permitted Investments (other than Restricted Cash)
of the Borrower and the Restricted Subsidiaries (but not of any
Unrestricted Subsidiary) that would be reflected on a consolidated
balance sheet of the Borrower and the Restricted Subsidiaries as of
such date prepared in accordance with GAAP over (y) the Minimum Cash
Amount as of such date."
"'2003 Senior Discount Notes' means the unsecured Senior
Discount Notes due 2009 of Alamosa Delaware issued by Alamosa Delaware
in accordance with the Exchange Offers or the Prepackaged Plan, as the
case may be, and having an accreted value at issuance not in excess of
$198,100,000, and a face value at issuance not in excess of
$238,200,000 (assuming issuance on or before October 31, 2003, and
subject to appropriate adjustment if issued thereafter) and having
substantially the terms set forth in the Offering Circular."
"'2003 Senior Discount Notes Indenture' means the indenture
under which the 2003 Senior Discount Notes are issued and all other
instruments, agreements and other documents evidencing or governing the
2003 Senior Discount Notes or providing for any Guarantee or other
right in respect thereof."
"'2003 Senior Notes' means the unsecured Senior Notes due 2010
of Alamosa Delaware issued by Alamosa Delaware in accordance with the
Exchange Offers or the Prepackaged Plan, as the case may be, in an
aggregate principal amount not in excess of $260,000,000 and having
substantially the terms set forth in the Offering Circular."
"'2003 Senior Notes Indenture' means the indenture under which
the 2003 Senior Notes are issued and all other instruments, agreements
and other documents evidencing or governing the 2003 Senior Notes or
providing for any Guarantee or other right in respect thereof."
(b) Section 6.01(a). Section 6.01(a) of the Credit Agreement
is amended by (x) replacing the words "Section 6.01(ii)" with the words "Section
6.01(a)(ii), (xv), (xvi) and (xvii)" in clause (iv) and (y) deleting the word
"and" at the end of clause (xiv).
(c) Section 6.01(a). Section 6.01(a) of the Credit Agreement
is further amended by replacing the period at the end of clause (xv) with a
semicolon and inserting new clause (xvi) as follows:
"(xvi) 2003 Senior Notes in an aggregate principal amount not
in excess of $260,000,000 and any extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof
or result in an earlier maturity date or decreased
2
weighted average life thereof; provided, in each case, that (I) the
covenants, events of default and mandatory prepayment or repurchase
provisions of such 2003 Senior Notes (and any such extensions, renewals
or replacements) are not materially more restrictive than those of the
New Senior Notes Indenture and the 12 1/2% Senior Notes Indenture and
(II) the 2003 Senior Notes (and any such extensions, renewals or
replacements) are not Guaranteed by any Subsidiary that has not
Guaranteed the Obligations pursuant to the Guarantee Agreement, and any
such Guarantee of the 2003 Senior Notes by a Subsidiary Loan Party
shall be unsecured and shall be subordinated to its Guarantee of the
Obligations on terms no less favorable to the Lenders than the
subordination terms relating to Subsidiary Guarantees under the 12 1/2%
Senior Notes Indenture and the New Senior Notes Indenture; and"
(d) Section 6.01(a). Section 6.01(a) of the Credit Agreement
is further amended by inserting new clause (xvii) as follows:
"(xvii) 2003 Senior Discount Notes with an accreted value not
in excess of $198,100,000 and a face value not in excess of
$238,200,000 and any extensions, renewals and replacements thereof that
do not increase the outstanding principal amount thereof or result in
an earlier maturity date or decreased weighted average life thereof;
provided, in each case, that (I) the covenants, events of default, and
mandatory prepayment or repurchase provisions of such 2003 Senior
Discount Notes (and any such extensions, renewals or replacements) are
not materially more restrictive than those of the 12 7/8% Senior
Discount Note Indenture and (II) the 2003 Senior Discount Notes (and
any such extensions, renewals or replacements) are not Guaranteed by
any Subsidiary that has not Guaranteed the Obligations pursuant to the
Guarantee Agreement, and any such Guarantee of the 2003 Senior
Discount Notes by a Subsidiary Loan Party shall be unsecured and shall
be subordinated to its Guarantee of the Obligations on terms no less
favorable to the Lenders than the subordination terms relating to
Subsidiary Guarantees under the 12 7/8% Senior Discount Note
Indenture."
(e) Section 6.01(b). Section 6.01(b) of the Credit Agreement
is amended by inserting the following at the end of clause (ii): "(provided that
any Guarantee of Indebtedness incurred under the Alamosa Delaware Indentures
shall be subordinated, on terms reasonably satisfactory to the Administrative
Agent, to Superholdings' Guarantee of the Obligations)."
(f) Section 6.01(d). Section 6.01(d) of the Credit Agreement
is amended by deleting ", in the case of Superholdings, pursuant to a
shareholders' rights plan on customary terms and conditions" and inserting in
place thereof the following: "(i) in the case of Superholdings, pursuant to a
shareholders' rights plan on customary terms and conditions and (ii) the
issuance by Superholdings of up to $176,200,000 in aggregate stated value of
Convertible Preferred Stock and up to $75,000,000 in aggregate stated value of
Dividend Preferred Stock, in each case, in, or in accordance with the terms of,
the Exchange Offers or the Prepackaged Plan, as the case may be."
(g) Section 6.04. Section 6.04 of the Credit Agreement is
amended by replacing the period at the end of Section 6.04(k) with "; and" and
adding a new clause (l) to read as follows:
3
"(l) other Investments in any Person (including any
Unrestricted Subsidiary) in an aggregate amount at any time outstanding
not to exceed $25,000,000; provided that, after making any cash
payments described in Section 6.08(a)(vi), the amount of such payment
shall be applied to permanently reduce such aggregate limitation on
such Investments; provided further that immediately after giving effect
to any such Investment, the Borrower shall be in compliance with the
provisions of Section 6.12(h) and no Default shall have occurred and be
continuing."
(i) Section 6.08(a). Section 6.08(a) of the Credit Agreement
is amended by replacing clauses (iv) through (vii) with the following:
"(iv) at a time, in the case of both (x) and (y) below, when
there does not exist a Default (or such distribution would not cause a
Default), the Borrower may make distributions to Alamosa Delaware for
the sole purpose of, and in an amount sufficient to fund, the payment
of (x) principal at scheduled maturity and (y) interest when due as
scheduled, in each case in respect of the 2003 Senior Notes and the
2003 Senior Discount Notes and, if the Restructuring Transactions were
effected through the Exchange Offers, the Senior Notes, the 12 7/8%
Senior Discount Notes and the 12 1/2 Senior Notes; provided, in the
case of both (x) and (y), that such payment is due or to become due
within 30 days from the date of such distribution and the cash
distributed is in fact utilized to meet such payment obligation, (v) if
no Default has occurred and is continuing, the Borrower may pay
dividends to Alamosa Delaware and Alamosa Delaware may pay dividends to
APCS and Superholdings, in each case at such times and in such amounts,
not exceeding $1,000,000 during any fiscal year, as shall be necessary
to permit each of Alamosa Delaware, APCS and Superholdings to discharge
its permitted liabilities and (vi) the Borrower may pay dividends to
Alamosa Delaware, Alamosa Delaware may pay dividends to Superholdings
and Superholdings may pay dividends in respect of the Convertible
Preferred Stock at such times and in such amounts as shall be necessary
to (x) so long as no Default or Event of Default shall have occurred
and be continuing immediately prior to and after giving effect to any
such cash payment, pay cash to the holders of Convertible Preferred
Stock or Dividend Preferred Stock solely to the extent such payments
are in lieu of fractional shares of Dividend Preferred Stock or
Superholdings common stock to be issued in connection with a
Convertible Preferred Stock dividend or a Dividend Preferred Stock
dividend in an aggregate amount not to exceed $50,000 in any fiscal
quarter (provided that the aggregate amount of such payments shall not
exceed $250,000), each such payment to reduce permanently the aggregate
amount of Investments permitted under Section 6.04(l), and (y) pay the
holders of outstanding 12 1/2% Senior Notes, Senior Notes or 12 7/8%
Senior Discount Notes cash in lieu of (A) fractional notes to be
exchanged in connection with the Exchange Offers on the date that the
Exchange Offers are completed or (B) fractional shares of Convertible
Preferred Stock issued in connection with the Exchange Offers on the
date that the Exchange Offers are completed in an aggregate amount for
clauses (A) and (B) collectively not to exceed $175,000, each such
payment to reduce permanently the aggregate amount of Investments
permitted under Section 6.04(l). Except as permitted by clause (vi)(x)
above, neither Alamosa Delaware nor the Borrower will, nor will they
permit any Restricted Subsidiary to, directly or indirectly, make any
Restricted Payment,
4
including any payment of dividends, in respect of Convertible Preferred
Stock or Dividend Preferred Stock."
(j) Section 6.08(b). Section 6.08(b) 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 clause (viii) as follows:
"(viii) the exchange or cancellation of outstanding 12 1/2%
Senior Notes, Senior Notes and 12 7/8% Senior Discount Notes pursuant
to, and in accordance with, the Exchange Offers or the Prepackaged
Plan, as the case may be."
(j) Section 6.08. Section 6.08 is further amended by adding a
new paragraph (c) to read as follows:
"(c) Neither Alamosa Delaware nor the Borrower will, nor will
they permit any Restricted Subsidiary to, (i) permit any Unrestricted
Subsidiary to make or agree to make any Restricted Payment or other
payment or distribution referred to in paragraph (a) or (b) of this
Section that could not be made directly by Alamosa Delaware or the
Borrower in accordance with the provisions of this Section; provided
that, for purposes of this clause (c), "Indebtedness" referred to in
clause (b) shall be restricted to Indebtedness of Alamosa Delaware, the
Borrower, any Restricted Subsidiary or Superholdings or (ii) furnish
any funds to or make any Investment in an Unrestricted Subsidiary or
any other Person for purposes of enabling it to make any such
Restricted Payment, other payment or distribution."
(k) Section 6.10. Sections 6.10 of the Credit Agreement is
amended by replacing clause (B) in the first proviso thereof with the following:
"(B) under the 2003 Senior Notes Indenture or the 2003 Senior
Discount Notes Indenture and, if the Restructuring Transactions were
effected through the Exchange Offers, the New Senior Notes Indenture,
the 12 7/8% Senior Discount Notes Indenture and the 12 1/2 Senior Notes
Indenture or any amendment, modification, refinancing or replacement
thereof, provided that any such amendment, modification, refinancing or
replacement shall not expand the scope of, or other amend or modify
such restriction or condition in any manner that is less favorable to
the Lenders than such restriction or condition as in effect on the date
hereof,"
(l) Section 6.12. Sections 6.12(h) - (m) of the Credit
Agreement are amended to read as follows:
"(h) Minimum Liquidity. The Borrower will not on any date
permit the aggregate amount of cash and Permitted Investments of the
Borrower and the Restricted Subsidiaries (other than Restricted Cash)
to be less than the Minimum Cash Amount.
(i) Senior Leverage Ratio. Alamosa Delaware will not permit
the Senior Leverage Ratio as of any date during any period set forth
below to exceed the ratio set forth opposite such period:
5
Period Ratio
------ -----
September 30, 2003 2.50 to 1.00
through December 30,
2003
December 31, 2003 2.60 to 1.00
through March 30, 2004
March 31, 2004 through 2.25 to 1.00
June 29, 2004
June 30, 2004 and 2.00 to 1.00
thereafter
(j) Leverage Ratio. Alamosa Delaware will not permit the
Leverage Ratio as of any date during any period set forth below to
exceed the ratio set forth opposite such period:
Period Ratio
------ -----
September 30, 2003 11.00 to 1.00
through December 30, 2003
December 31, 2003 through 9.00 to 1.00
March 30, 2004
March 31, 2004 through 7.00 to 1.00
June 29, 2004
June 30, 2004 through 6.00 to 1.00
December 30, 2004
December 31, 2004 through 5.75 to 1.00
March 30, 2005
March 31, 2005 through 5.25 to 1.00
June 29, 2005
June 30, 2005 through 5.00 to 1.00
March 30, 2006
March 31, 2006 through 4.50 to 1.00
June 29, 2006
June 30, 2006 through 4.20 to 1.00
September 29, 2006
September 30, 2006 and 4.00 to 1.00
thereafter
6
(k) Fixed Charges Ratio. Alamosa Delaware will not permit the
ratio of (i) the sum of (x) Annualized EBITDA in respect of any fiscal
quarter plus (y) the Surplus Cash Amount on the date one year prior to
the last day of such fiscal quarter to (ii) Consolidated Fixed Charges
for the period of four consecutive fiscal quarters ending on the last
day of such fiscal quarter to be less than the ratio set forth below
opposite the period that includes the last day of such fiscal quarter:
Period Ratio
------ -----
October 1, 2003 through 1.10 to 1.00
March 31, 2004
April 1, 2004 through 1.15 to 1.00
June 30, 2005
July 1, 2005 through 1.05 to 1.00
December 31, 2005
January 1, 2006 and 1.00 to 1.00
thereafter
(l) Interest Expense Coverage Ratio. Alamosa Delaware will not
permit the ratio of (a) Annualized EBITDA in respect of any fiscal
quarter to (b) Consolidated Cash Interest Expense for the period of
four consecutive fiscal quarters ending on the last day of such fiscal
quarter to be less than the ratio set forth below opposite the period
that includes the last day of such fiscal quarter:
Period Ratio
------ -----
October 1, 2003 through 2.00 to 1.00
December 31, 2003
January 1, 2004 through 2.15 to 1.00
March 31, 2004
April 1, 2004 through 2.25 to 1.00
June 30, 2004
July 1, 2004 through 2.35 to 1.00
September 30, 2004
October 1, 2004 2.40 to 1.00
through December
31, 2004
January 1, 2005 through 2.50 to 1.00
June 30, 2006
July 1, 2006 through 2.25 to 1.00
March 31, 2007
April 1, 2007 through 2.50 to 1.00
June 30, 2007
July 1, 2007 and 2.75 to 1.00
thereafter
(m) Pro Forma Debt Service. Alamosa Delaware will not permit
the ratio of (i) Annualized EBITDA for any fiscal quarter ending on any
date during any period set forth below to (ii) Pro Forma Debt Service
as of the last day of such fiscal quarter to be less than the ratio set
forth below opposite such period:
Period Ratio
------ -----
October 1, 2003 through 1.25 to 1.00
December 31, 2003
January 1, 2004 through 1.30 to 1.00
March 31, 2004
April 1, 2004 through 1.50 to 1.00
June 30, 2004
July 1, 2004 through 1.40 to 1.00
September 30, 2004
October 1, 2004 through 1.30 to 1.00
December 31, 2004
January 1, 2005 through 1.15 to 1.00
March 31, 2005
April 1, 2005 through 1.25 to 1.00
June 30, 2005
July 1, 2005 through 1.10 to 1.00
December 31, 2005
January 1, 2006 through 1.15 to 1.00
March 31,
2007
8
April 1, 2007 through 1.35 to 1.00
June 30, 2007
July 1, 2007 and 1.50 to 1.00"
thereafter
.."
(m) Article IX of the Credit Agreement is amended by adding a
new Section 9.16 to read as follows:
"SECTION 9.16. Electronic Communications. (a) Notwithstanding
anything in any Loan Document to the contrary, the Borrower hereby
agrees that it will use its reasonable best efforts to provide to the
Administrative Agent all information, documents and other materials
that it is obligated to furnish to the Administrative Agent pursuant to
the Loan Documents, including, without limitation, all notices,
requests, financial statements, financial and other reports,
certificates and other information materials, but excluding any such
communication that (i) relates to a request for a new, or a conversion
of an existing, Borrowing or other extension of credit (including any
election of an interest rate or Interest Period relating thereto), (ii)
relates to the payment of any principal or other amount due under any
Loan Document prior to the scheduled date therefor, (iii) provides
notice of any Default or Event of Default under any Loan Document or
(iv) is required to be delivered to satisfy any condition set forth in
Section 4.01 and/or 4.02 (all such non-excluded communications being
referred to herein collectively as the `Communications'), by
transmitting the Communications in an electronic/soft medium in a
format reasonably acceptable to the Administrative Agent to
xxxxxxxxxxxxxxx@xxxxxxxxx.xxx, with a copy to xxxx.xxxxx@xxxxxxxxx.xxx.
In addition, the Borrower agrees to continue to provide the
Communications to the Administrative Agent in the manner specified in
the Loan Documents, to the extent requested by the Administrative
Agent.
(b) The Borrower further agrees that the Administrative Agent
may make the Communications available to the Lenders by posting the
Communications on Intralinks, Fixed Income Direct, e-mail or a
substantially similar electronic transmission system (each such system,
a `Platform'). The Borrower acknowledges that the distribution of
material through an electronic medium is not necessarily secure and
that there are confidentiality and other risks associated with such
distribution.
(c) EACH PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE". THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF ANY PLATFORM,
AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE
COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT
PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR ANY
9
PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS
AFFILIATES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
ADVISORS OR REPRESENTATIVES (COLLECTIVELY, THE `AGENT PARTIES') HAVE
ANY LIABILITY TO THE BORROWER, ANY OTHER LOAN PARTY, ANY LENDER OR ANY
OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT
LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE)
ARISING OUT OF THE BORROWER'S OR THE ADMINISTRATIVE AGENT'S
TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE
EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE
RESULTED FROM SUCH AGENT PARTY'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
(d) Each Lender agrees that notice to it (as provided in the
next sentence) specifying that the Communications have been posted to a
Platform or direct e-mail delivery to it shall constitute effective
delivery of the Communications to such Lender for purposes of this
Section. Each Lender agrees (i) to notify the Administrative Agent in
writing (including by electronic communication) from time to time of
such Lender's e-mail address to which the notices may be sent by
electronic transmission and (ii) that the foregoing notice may be sent
to such e-mail address."
10
