Exhibit 10.62
EXECUTION COPY
SIXTH AMENDMENT as of September 26, 2002 (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 and the Security Agreement be amended in
the manner provided for in this Amendment, and the Required Lenders are
willing to agree to such amendments 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. (a) The
definition of "Applicable Rate" in Section 1.01 of the
Credit Agreement is amended by replacing the grid therein
with the following:
ABR Eurodollar
Leverage Ratio: Spread Spread
--------------- ------ ------
Category 1
----------
Initial Spread 3.25 4.25
Category 2
----------
Greater than or
equal to 9.0:1.0 3.00 4.00
Category 3
----------
Greater than or
equal to 8.0:1.0
and less than
9.0:1.0 2.75 3.75
Category 4
----------
Greater than or
equal to 6.0:1.0
and less than
8.0:1.0 2.50 3.50
Category 5
----------
Greater than or
equal to 5.0:1.0
and less than
6.0:1.0 2.25 3.25
Category 6 2.00 3.00
---------- ---- ----
Less than 5.0:1.0
(b) The definition of "Consolidated Cash Interest
Expense" in Section 1.01 of the Credit Agreement is amended by revising
clause (a)(i) to read in its entirety as follows:
"(i) the interest expense (including imputed interest
expense in respect of Capital Lease Obligations but excluding the
amount of cash interest payments made in respect of the Senior
Notes with funds in the interest escrow account established in
accordance with Section 6.02(a)(viii) or described on Schedule
6.02) of Alamosa Delaware and the Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with
GAAP,"
(c) Section 1.01 of the Credit Agreement is amended by
adding the following definitions in correct alphabetical order:
"'Restricted Cash' means, on any date, the amount of cash
and Permitted Investments of Alamosa Delaware and its Restricted
Subsidiaries on such date that is restricted or subject to any
Lien other than Liens arising under the Security Documents."
"'2002 Business Plan' means the revised business plans
covering periods through 2008 of Alamosa Delaware and the Borrower
distributed to the Lenders on or about September 11, 2002."
(d) Article II of the Credit Agreement is hereby amended
by adding the following sentence at the end of Section 2.01:
"Notwithstanding the foregoing, until such time as the Leverage
Ratio is less than or equal to 5.5 to 1.0 and the Borrower has
delivered consolidated financial statements pursuant to Section
5.01(a) or (b) demonstrating that such Leverage Ratio has been
attained, the aggregate amount of Revolving Exposure shall not
exceed $10,000,000 and the Borrower shall not be entitled to
request any Revolving Borrowing or any Letter of Credit (or
renewal, extension or amendment thereof) to the extent such
Revolving Borrowing or Letter of Credit (or renewal, extension or
amendment thereof), if made or issued, would result in the
aggregate amount of Revolving Exposure being greater
than $10,000,000."
(e) Section 2.10(c) of the Credit Agreement is hereby
amended by replacing each reference to the number "270" with a reference to
the number "90" and replacing the term "270-day" with the term "90-day".
(f) Article IV of the Credit Agreement is hereby amended
by adding the following new paragraphs to Section 4.02 thereof:
"(d) Immediately prior to giving effect to such Borrowing
or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, the aggregate amount of the cash and
Permitted Investments of Alamosa Delaware and the Restricted
Subsidiaries (other than Restricted Cash) shall not exceed
$15,000,000.
(e) In the case of any Revolving Borrowing, the amount
thereof shall not be greater than such amount as is reasonably
necessary, after taking into account the amount of available cash
and Permitted Investments on hand (other than Restricted Cash),
anticipated cash receipts and the amount of cash and Permitted
Investments required to comply with Section 6.12(h), to satisfy
ordinary course payment obligations (other than any such
obligations to be paid with Restricted Cash) of Alamosa Delaware
and the Restricted Subsidiaries required to be paid during the
two-week period commencing on the date of such Borrowing.
(f) The Administrative Agent shall have received a
certificate, signed by the President, a Vice President or a
Financial Officer of the Borrower and in such detail as is
reasonably satisfactory to the Administrative Agent, setting forth
in reasonable detail the amount of cash and Permitted Investments
of Alamosa Delaware and the Restricted Subsidiaries on hand
(including the amount thereof consisting of Restricted Cash) and
identifying and quantifying their anticipated cash receipts and
disbursements during the two-week period commencing on the date of
such Borrowing (separately identifying any such disbursements to
be made from Restricted Cash)."
(g) Section 5.01 of the Credit Agreement is amended by:
(w) revising clause (a)(iii) to read as follows:
"(iii) at the time of delivery of the financial
statements set forth above for each fiscal year ended on or after
December 31, 2002, (A) a narrative summary containing a detailed
explanation of the financial performance of Alamosa Delaware and
its Restricted Subsidiaries for such fiscal year and the fiscal
quarter then ending as compared against the 2002
Business Plan and (B) a quantitative analysis containing a
detailed comparison of the financial performance of Alamosa
Delaware and its Restricted Subsidiaries for such fiscal year and
fiscal quarter as compared against the 2002 Business Plan, in each
case in form satisfactory to the Administrative Agent;"
(x) revising clause (b)(ii) to read as follows:
"(ii) each fiscal quarter ending on or after September
30, 2002, (A) a narrative summary containing a detailed
explanation of the financial performance of Alamosa Delaware and
its Restricted Subsidiaries for such financial quarter as compared
against the 2002 Business Plan and (B) a quantitative analysis
containing a detailed comparison of the financial performance of
Alamosa Delaware and its Restricted Subsidiaries for such fiscal
quarter as compared against the 2002 Business Plan in each case in
form satisfactory to the Administrative Agent;" and
(y) revising clause (c) to read as follows:
"(c) within 30 days after the end of each of the first
two fiscal months of each fiscal quarter of the Borrower ending on
or after September 30, 2002, its internal management report as of
the end of and for such fiscal month and the then elapsed portion
of the fiscal year, in the same form as delivered to management of
Alamosa Delaware and the Borrower and, in any event, including a
comparison of the financial performance of Alamosa Delaware and
its Restricted Subsidiaries for such fiscal month against the 2002
Business Plan;" and
(z) further deleting the word "and" at the end of clause
(g), redesignating existing clause (h) as clause (i) and adding a
new clause (h) to read as follows:
"(h) not later than 15 days after the last day of each
calendar month, a certificate of a Financial Officer of the
Borrower in reasonable detail identifying each account at which
any cash or Permitted Investments of Alamosa Delaware or any
Restricted Subsidiary is maintained and certifying as to the
amount of such cash and Permitted Investments in each such account
as of the last day of such calendar month (separately identifying
any such amounts that constitute Restricted Cash), it being
understood that such certificate may be delivered electronically;
and"
(h) Section 6.04 of the Credit Agreement is hereby
amended and restated in its entirety as follows:
"SECTION 6.04. Investments, Loans,
Advances, Guarantees and Acquisitions. Alamosa
Delaware will not, and will not permit any of its
Restricted Subsidiaries to, purchase, hold or
acquire any Investment, except:
(a) the Merger Transactions;
(b) Permitted Investments;
(c) Investments existing on the date
hereof and set forth on Schedule 6.04;
(d) Investments by Alamosa Delaware and its
Restricted Subsidiaries that are Loan Parties (other than
any Special Purpose Subsidiary) in Equity Interests in
their respective Restricted Subsidiaries that are Loan
Parties; provided that any such Equity Interests held by
a Loan Party shall be pledged pursuant to the Pledge
Agreement (subject to the limitations applicable to
common stock of a Foreign Subsidiary referred to in
Section 5.12);
(e) loans or advances made by Alamosa Delaware
to any Restricted Subsidiary that is a Loan Party and
made by any Restricted Subsidiary to Alamosa Delaware or
any other Restricted Subsidiary that is a Loan Party;
provided that any such loans and advances made by Alamosa
Delaware, the Borrower or any Subsidiary Loan Party, to
the extent evidenced by a promissory note, shall be
pledged pursuant to the Pledge Agreement;
(f) Guarantees constituting Indebtedness
permitted by Section 6.01; provided that no Indebtedness
of Restricted Subsidiaries that are not Loan Parties
shall be Guaranteed by
any Loan Party;
(g) Investments received in connection with the
bankruptcy or reorganization of, or settlement of
delinquent accounts and disputes with, customers and
suppliers, in each case in the ordinary course of
business;
(h) promissory notes and other non-cash
consideration received in connection with any asset sale
to the extent permitted by Section 6.05;
(i) loans, advances or extensions of credit to
employees, officers and directors made in the ordinary
course of business in an aggregate principal amount at
any time outstanding not to exceed $1,000,000;
(j) negotiable instruments held for collection
and operating lease, utility and workers' compensation,
performance and other similar deposits in the ordinary
course of business; and
(k) Investments in Hedging Agreements
permitted by Section 6.07."
(i) Section 6.08 of the Credit Agreement is hereby
amended by revising clause (a)(vi) in its entirety as
follows: "(vi) [intentionally deleted]".
(j) Section 6.12 of the Credit Agreement is hereby
amended and restated in its entirety as follows:
"SECTION 6.12. Certain Financial Covenants.
(a) Subscribers. Alamosa Delaware will
not permit the number of Subscribers on any date set
forth below to be less than the number of Subscribers set
forth opposite such date:
Date Minimum Subscribers
---- -------------------
March 31, 2001 163,150
June 30, 2001 261,700
September 30, 2001 342,200
December 31, 2001 427,400
March 31, 2002 482,500
June 30, 2002 536,000
September 30, 2002 575,000
December 31, 2002 610,000
March 31, 2003 620,000
(b) Covered Pops. Alamosa Delaware will
not permit the number of Covered Pops in the Service
Regions on any date set forth below to be less than the
Covered Pops set forth opposite such date:
Date Minimum Covered Pops
---- --------------------
March 31, 2001 6,800,000
June 30, 2001 9,400,000
September 30, 2001 9,700,000
December 31, 2001 9,800,000
March 31, 2002 9,900,000
June 30, 2002 9,900,000
September 30, 2002 9,900,000
December 31, 2002 9,900,000
March 31, 2003 9,900,000
(c) Aggregate Service Revenue. Alamosa
Delaware will not permit Aggregate Service Revenue
for any fiscal quarter ending on any date set forth below
to be less than the Aggregate Service Revenue set forth
opposite such date:
Minimum Aggregate Service
Date Revenue
---- -------
March 31, 2001 $30,190,000
June 30, 2001 $48,000,000
September 30, 2001 $70,977,000
December 31, 2001 $80,428,000
March 31, 2002 $83,750,000
June 30, 2002 $93,363,000
September 30, 2002 $103,355,000
December 31, 2002 $115,224,000
March 31, 2003 $120,000,000
(d) Consolidated EBITDA. (i) Alamosa
Delaware will not permit Consolidated EBITDA losses for
any fiscal quarter ending on or before June 30, 2002 to
be greater than the number set forth opposite such
quarter:
Revised
Maximum EBITDA Business Plan
Period Losses Forecast
------ ------ --------
January 1, 2001 through
March 31, 2001 $16,674,000 N/A
April 1, 2001 through
June 30, 2001 $14,895,000 N/A
July 1, 2001 through
September 30, 2001 $15,608,000 ($12,108,000)
October 1, 2001 through
December 31, 2001 $21,519,000 ($18,019,000)
January 1, 2002 through
March 31, 2002 $6,938,000 ($3,438,000)
April 1, 2002 through
June 30, 2002 $1,771,000 $1,729,000
; provided, however, that commencing with the fiscal quarter
ending December 31, 2001, the Maximum EBITDA Losses amount set
forth opposite any given fiscal quarter above shall be increased
by an amount (to the extent such amount is greater than zero)
equal to the sum of (i) an amount equal to $3,500,000 less the
amount, if any, by which the actual Consolidated EBITDA losses of
Alamosa Delaware for the immediately preceding fiscal quarter
exceed those forecast for such immediately preceding quarter in
the Revised Business Plan plus (ii) an amount (if positive) equal
to $3,500,000 less the amount, if any, by which the actual
Consolidated EBITDA losses of Alamosa Delaware for the fiscal
quarter two quarters prior to the current fiscal quarter exceed
those forecast for such previous fiscal quarter in the Revised
Business Plan; provided, further, however, that the maximum amount
by which the Maximum EBITDA Losses amount may be increased in any
fiscal quarter shall not exceed $3,500,000.
(ii) Alamosa Delaware will not permit Consolidated EBITDA for any
fiscal quarter ending on or after September 30, 2002 to be less
than the Minimum EBITDA number set forth opposite such period:
Revised
Business Plan
Period Minimum EBITDA Forecast
------ -------------- --------
July 1, 2002 through
September 30, 2002 $1,976,000 $4,311,000
October 1, 2002 through
December 31, 2002 $2,300,000 $2,319,000
January 1, 2003 through
March 31, 2003 $17,237,000
; provided, however, that the amount set forth opposite any given
fiscal quarter above shall be decreased by an amount (to the
extent such amount is greater than zero) equal to the sum of (i)
an amount equal to $3,500,000 less the amount, if any, by which
the Consolidated EBITDA of Alamosa Delaware forecast in the 2002
Business Plan for the immediately preceding fiscal quarter exceeds
the actual Consolidated EBITDA of Alamosa Delaware for such
immediately preceding quarter plus (ii) an amount (if positive)
equal to $3,500,000 less the amount, if any, by which the
Consolidated EBITDA of Alamosa Delaware forecast in the 2002
Business Plan for the fiscal quarter two quarters prior to the
current fiscal quarter exceeds the actual Consolidated EBITDA of
Alamosa Delaware for such previous fiscal quarter (or, in the case
of the fiscal quarter ending June 30, 2002, the amount, if any, by
which the actual Consolidated EBITDA losses of Alamosa Delaware
for such quarter exceed those forecast for such quarter in the
Revised Business Plan); provided, further, however, that the
maximum amount by which the Minimum EBITDA amount may be decreased
in any fiscal quarter shall not exceed $3,500,000.
(e) Senior Borrower Debt to Total Borrower
Capital. The Borrower will not permit the ratio of Senior Borrower
Debt to Total Borrower Capital as of the last day of any fiscal
quarter ending (i) on or prior to June 30, 2001 to exceed 0.35 to
1.00 and (ii) after June 30, 2001 and on or prior to March 31,
2003 to exceed 0.25 to 1.00.
(f) Total Indebtedness to Total Capital. Alamosa
Delaware will not permit the ratio of Total Indebtedness to Total
Capital as of the last day of any fiscal quarter ending on or
prior to March 31, 2003 to exceed 0.77 to 1.00.
(g) Capital Expenditures. Alamosa Delaware
will not permit the aggregate cumulative amount of Capital
Expenditures of Alamosa Delaware and its Restricted Subsidiaries
(excluding Capital Expenditures paid with Net Proceeds in respect
of Prepayment Events described in clause (a) or (b) of the
definition thereof) in respect of the period from January 1, 2001
through any date set forth below to exceed the amount set forth
opposite such date:
Period Amount
------ ------
September 30, 2001 $141,117,000
December 31, 2001 $156,149,000
March 31, 2002 $190,349,000
June 30, 2002 $222,601,000
September 30, 2002 $227,937,000
December 31, 2002 $233,322,000
March 31, 2003 $246,508,000
(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 $10,000,000.
(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:
Period Ratio
------ -----
March 31, 2003 through
June 29, 2003 5.25 to 1.00
June 30, 2003 through
September 29, 2003 2.75 to 1.00
September 30, 2003
through March 30, 2004 2.50 to 1.00
March 31, 2004 and
thereafter 2.00 to 1.00
(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
------ -----
March 31, 2003 through 23.00 to 1.00
June 29, 2003
June 30, 2003 through 12.00 to 1.00
September 29, 2003
September 30, 2003 through 11.00 to 1.00
December 30, 2003
December 31, 2003 through 10.75 to 1.00
March 30, 2004
March 31, 2004 through 8.00 to 1.00
June 29, 2004
June 30, 2004 through 6.25 to 1.00
September 29, 2004
September 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 5.00 to 1.00
June 29, 2005
June 30, 2005 through 4.50 to 1.00
September 29, 2005
September 30, 2005 through 4.25 to 1.00
December 30, 2005
December 31, 2005 and 4.00 to 1.00
thereafter
(k) Fixed Charges Ratio. Alamosa Delaware will
not permit the ratio of (i) Annualized EBITDA to (ii) Consolidated
Fixed Charges for any period of four consecutive fiscal quarters
ending on any date during any period set forth below to be less
than the ratio set forth below opposite such period:
Period Minimum Ratio
------ -------------
April 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
March 31, 2006
April 1, 2006 through 1.10 to 1.00
December 31, 2006
January 1, 2007 and 1.25 to 1.00
thereafter
(l) Interest Expense Coverage Ratio.
Alamosa Delaware will not permit the ratio of (a) Annualized
EBITDA to (b) Consolidated Cash Interest Expense for any period
of four consecutive fiscal quarters ending on any date during any
period set forth below to be less than the ratio set forth below
opposite such period:
Period Ratio
------ -----
January 1, 2003 through 2.00 to 1.00
March 31, 2003
April 1, 2003 through 2.25 to 1.00
December 31, 2003
January 1, 2004 through 2.00 to 1.00
March 31, 2004
April 1, 2004 through 2.50 to 1.00
June 30, 2004
July 1, 2004 through 2.35 to 1.00
September 30, 2004
October 1, 2004 through 2.40 to 1.00
December 31, 2004
January 1, 2005 through 2.50 to 1.00
December 31, 2006
January 1, 2007 and 3.00 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
------ -----
April 1, 2003 through 1.10 to 1.00
June 30, 2003
July 1, 2003 through 1.00 to 1.00
December 31, 2003
January 1, 2004 through 1.20 to 1.00
March 31, 2004
April 1, 2004 through 1.25 to 1.00
December 31, 2005
January 1, 2006 and 1.50 to 1.00"
thereafter
(k) Article VI of the Credit Agreement is further amended
by adding new Sections 6.15 and 6.16 to read as follows:
"SECTION 6.15. Indenture Debt Payments. The
Borrower and Alamosa Delaware will not permit any
portion of the proceeds of Borrowings under this
Agreement to be used to pay principal, interest or
other amounts in respect of any Indebtedness issued
under or governed by the Alamosa Delaware Indentures.
SECTION 6.16. Pledge of Cash and Permitted
Investments. The Borrower and Alamosa Delaware will
not on any date permit the amount of cash and Permitted
Investments of Alamosa Delaware and the Restricted
Subsidiaries (other than Restricted Cash) which is not
held in a deposit or securities account subject to an
effective control agreement in favor of the Collateral
Agent entered into in accordance with Section 4.14 or
Section 4.15 of the Security Agreement to exceed
$2,500,000."
3. Amendments to the Security Agreement. (a) The
definition of "Excluded Asset" in Section 1.02 of the
Security Agreement is amended and restated in its entirety
as follows:
"'Excluded Asset' shall mean (a) any asset subject to a
Lien permitted pursuant to Section 6.02 of the Credit Agreement to
the extent the agreement creating such Lien or the Indebtedness
secured by such Lien prohibits the granting of a secured Lien on
such asset; provided that upon the termination of all prior Liens
on any of the foregoing assets, such asset shall cease to be an
Excluded Asset and (b) the custody account that is pledged to
Xxxxx Fargo Bank Minnesota, N.A., as collateral agent for the
benefit of the holders of Alamosa Delaware's 12-8/8% Senior
Discount Notes due 2010 and its 12-1/2% Senior Notes due 2011 and
(c) the interest escrow account established in accordance with
Section 6.02(a)(viii) of the Credit Agreement."
(b) Article IV of the Security Agreement is hereby
amended by adding the following Section 4.14 at the end thereof:
"SECTION 4.14 Deposit and Securities Accounts.
For each deposit account that any Grantor at any time opens or
maintains, as well as any account through which any Grantor holds
Permitted Investments through a financial intermediary, such
Grantor shall, at the Collateral Agent's request and option,
pursuant to an agreement in form and substance satisfactory to
the Collateral Agent, either (a) cause the depositary bank or
financial intermediary to agree to comply at any time with
instructions from the Collateral Agent to such depositary bank or
financial intermediary directing the disposition of funds or
Permitted Investments from time to time credited to such account,
without further consent of such Grantor, or (b) arrange for the
Collateral Agent to become the customer of the depositary bank or
financial intermediary with respect to the account, with the
Grantor being permitted, only with the consent of the Collateral
Agent, to exercise rights to withdraw funds or assets from such
account; provided, however, that the Collateral Agent's exercise
of remedies under such agreements shall be limited to periods
when an Event of Default has occurred and is continuing. The
provisions of this paragraph shall not apply to (i) any account
for which any Grantor, the depositary bank or financial
intermediary and the Collateral Agent have entered into a
collateral agreement specially negotiated among such Grantor, the
depositary bank or financial intermediary and the Collateral
Agent for the specific purpose set forth therein, (ii) the
interest escrow account established in accordance with Section
6.02(a)(viii) of the Credit Agreement or described on Schedule
6.02 of the Credit Agreement, (iii) accounts for which the
Collateral Agent is the depositary and (iv) accounts holding in
the aggregate less than $2,500,000".
4. 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, the
Syndication Agent, the Co-Documentation Agent, the Documentation
Agent or the Administrative Agent under the Credit Agreement, as
amended by this Amendment, or any other Loan 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 set forth herein. After the
date hereof, any reference to the Credit Agreement shall mean the
Credit Agreement as modified hereby. This Amendment shall
constitute a "Loan Document" for all purposes of the Credit
Agreement and the other Loan Documents.
5. 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 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.
6. Effectiveness. This Amendment shall become effective
(the "Amendment Effective Date") only upon satisfaction of the following
conditions prior to 5:00 p.m., New York time on September 27, 2002:
(i) the Agent shall have received counterparts hereof
duly executed and delivered by the Alamosa Parties and the
Required Lenders;
(ii) the Administrative Agent shall have received such
opinions and certificates from the Alamosa Parties as it may
reasonably request in form reasonably satisfactory to its counsel;
(iii) the Borrower shall have paid an amendment fee to
each Lender that has delivered an executed counterpart of this
Amendment to the Agent by the Amendment Effective Date, equal to
.375% of the aggregate amount of such Lender's Term Loans,
Revolving Exposure and unutilized Commitments (such payment to be
made by wire transfer of immediately available funds to the Agent
for the respective accounts of such Lenders); and
(iv) the Borrower shall have paid or reimbursed all
out-of-pocket expenses of the Administrative Agent, to the extent
invoiced, that are subject to payment or reimbursement pursuant to
Section 7 of this Amendment or Section 9.03 of the Credit
Agreement.
7. 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.
8. Interest Accruals. Interest and fees calculated on the
basis of the "Applicable Rate" under the Credit Agreement will accrue (i)
in respect of all periods prior to the Amendment Effective Date based on
the Applicable Rate in effect prior to the effectiveness of this Amendment
and (ii) in respect of all periods on or after the Amendment Effective Date
based on the Applicable Rate as amended by this Amendment.
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 respective proper and
duly authorized officers as of the day and year first above written.
ALAMOSA HOLDINGS, INC.,
by
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman and CEO
ALAMOSA (DELAWARE), INC.,
by /s/ Xxxxx X. Xxxxxxxx
-----------------------
/s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Chairman and CEO
ALAMOSA HOLDINGS, LLC,
by /s/ Xxxxx X. Xxxxxxxx
-----------------------
/s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: President
EACH OF THE GRANTORS LISTED ON
SCHEDULE I HERETO
by /s/ Xxxxxxx Xxxxx
-------------------------
/s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Authorized Officer
CITICORP USA, INC., individually and
as Administrative Agent,
by /s/ Xxxx X. Judge
------------------------
/s/ Xxxx X. Judge
Name: Xxxx X. Judge
Title: Vice President
SIGNATURE PAGE to
SIXTH AMENDMENT,
dated as of September 26, 2002
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Sixth Amendment:
Name of Institution: Societe Generele
------------------------------------------
by /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Managing Director
SIGNATURE PAGE to
SIXTH AMENDMENT,
dated as of September 26, 2002
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Sixth Amendment:
Name of Institution: Nomura Bond and Loan Fund
-------------------------------------------
by: UFJ Trust Company of New York
as Trustee
by: Nomura Corporate Research and
Asset Management Inc.
Attorney in Fact
by /s/ Xxxxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
SIGNATURE PAGE to
SIXTH AMENDMENT,
dated as of September 26, 2002
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Sixth Amendment:
Name of Institution: Clydesdale CLO 2001-1, Ltd.
-------------------------------------------
Nomura Corporate Research and
Asset Management Inc. as
Collateral Manager
by /s/ Xxxxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
SIGNATURE PAGE to
SIXTH AMENDMENT,
dated as of September 26, 2002
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Sixth Amendment:
Name of Institution: Bank of Nova Scotia
-------------------------------------------
by /s/ Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
SIGNATURE PAGE to
SIXTH AMENDMENT,
dated as of September 26, 2002
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Sixth Amendment:
Name of Institution: Fortis Capital Corp.
-------------------------------------------
by /s/ Xxxx X. XxXxxxxxx
------------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Managing Director
by /s/ Xxxxxxx Ciralilo
-----------------------------------
Name: Xxxxxxx Ciralilo
Title: Assistant Vice President
SIGNATURE PAGE to
SIXTH AMENDMENT,
dated as of September 26, 2002
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Sixth Amendment:
Name of Institution: HarburView CLO IV, Ltd.
------------------------------
by /s/ Xxxx Xxxxxxx
---------------------------
Name: Xxxx Xxxxxxx
Title: Manager
SIGNATURE PAGE to
SIXTH AMENDMENT,
dated as of September 26, 2002
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Sixth Amendment:
Name of Institution: Xxxxxxxxxxx Senior Floating Rate Fund
-------------------------------------------
by /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Manager
SIGNATURE PAGE to
SIXTH AMENDMENT,
dated as of September 26, 2002
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Sixth Amendment:
Name of Institution: Wachovia Bank, N.A.
f/k/a First Union National Bank
---------------------------------
by /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Director
SIGNATURE PAGE to
SIXTH AMENDMENT,
dated as of September 26, 2002
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Sixth Amendment:
Name of Institution: WESTLB AG (formerly
Westdeutsche Landesbank Girozentrale)
---------------------------------------
by /s/ Xxxxx Xxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Director
by /s/ Xxxxx Xx
------------------------------
Name: Xxxxx Xx
Title: Associate Director
SIGNATURE PAGE to
SIXTH AMENDMENT,
dated as of September 26, 2002
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Sixth Amendment:
Name of Institution: Toronto Dominion (Texas), Inc.
-------------------------------
by /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Vice President
SIGNATURE PAGE to
SIXTH AMENDMENT,
dated as of September 26, 2002
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Sixth Amendment:
Name of Institution: Franklin Floating Rate Trust
Franklin Floating Rate Master Series
------------------------------------
by /s/ Xxxxxxx X'Xxxxxxx
-----------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
SIGNATURE PAGE to
SIXTH AMENDMENT,
dated as of September 26, 2002
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Sixth Amendment:
Name of Institution: General Electric Capital Corporation
------------------------------------
by /s/ Xxxxx X. Xxxx
-----------------------------
Name: Xxxxx X. Xxxx
Title: Manager-Operations
SIGNATURE PAGE to
SIXTH AMENDMENT,
dated as of September 26, 2002
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Sixth Amendment:
Name of Institution: IBM Credit Corporation
----------------------
by /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager of Credit
SIGNATURE PAGE to
SIXTH AMENDMENT,
dated as of September 26, 2002
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Sixth Amendment:
Name of Institution: Export Development Canada
-------------------------
by /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: IT Portfolio Manager
by /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Financial Services Manager
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
