EXHIBIT 10.56
EXECUTION COPY
THIRD AMENDMENT AND WAIVER dated as of July
19, 2001 (this "Amendment"), to the Amended and
Restated Credit Agreement, dated as of February 14,
2001, as amended and restated as of March 30, 2001
(the "Credit Agreement"), as amended, 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"); and Amendment to the
First Amendment.
WHEREAS the Alamosa Parties have requested that certain
provisions of the Credit Agreement be amended or waived, in the manner provided
for in this Amendment, and the Required Lenders, Majority Term Lenders (as
defined below) and each Term Lender party hereto are willing to agree to such
amendments and waivers on the terms and conditions hereinafter set forth. For
the purposes of this Amendment, the term "Majority Term Lenders" means, at any
time, Term Lenders having Term Loans and unused Term Commitments representing
more than 50% of the sum of the total outstanding Term Loans and unused Term
Commitments at such time.
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. Amendment to Credit Agreement. Section 5.16 of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"SECTION 5.16. Delivery of Revised Business Plans. No later
than October 1, 2001, Alamosa Delaware shall deliver to the
Lenders a 10-year business plan of each of Alamosa Delaware and
the Borrower, in form and substance satisfactory to the Required
Lenders."
3. Waiver. Each of the undersigned Lenders hereby expressly
waives, solely with respect to the borrowing on or prior to August 14, 2001 by
the Borrower from Term Lenders that have not extended their Term Commitments
pursuant to Section 4 of this Amendment of Term Loans in an aggregate principal
amount equal to the lesser of $50,000,000 and the aggregate principal amount of
Term Commitments due to expire on August 14, 2001 that have not been extended by
the Term Lenders pursuant to this Amendment (i) any Default or Event of Default
existing under the Credit Agreement as of the date hereof and (ii) the
limitation on borrowing set forth in Section 4 of the Second Amendment dated as
of June 7, 2001, among the Alamosa Parties, the Lenders party thereto and the
Agent.
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4. Extension of Term Commitments. (a) Each of the Term Lenders
having a Term Commitment under the Credit Agreement that executes a separate
signature block appearing on its signature page hereto set forth therein for
such purpose agrees that the scheduled expiration of a portion of its Term
Commitment on the six month anniversary of the Original Effective Date, as
provided in Section 2.09(b) of the Credit Agreement, shall be automatically
extended without any further action on the part of any Person to December 31,
2001.
(b) Notwithstanding the provisions of Section 2.02 of the
Credit Agreement, the Majority Term Lenders hereby agree that (i) the Borrower
may make a drawing of Term Loans pursuant to the waiver set forth in Section 3
above on a non-pro rata basis from the Term Lenders that have not extended their
Term Commitments pursuant to this Section (which Term Loans shall be made by
each non-extending Term Lender on a basis proportionate to its share of the
non-extended Term Commitments) and (ii) any Borrowing, subsequent to a Borrowing
pursuant to clause (i), by the Borrower of Term Loans up to the aggregate
principal amount of the Term Commitments extended pursuant to this Section shall
be drawn on a non-pro rata basis from the Term Lenders that have extended their
Term Commitments pursuant to this Section (which Term Loans shall be made by
each extending Term Lender on a basis proportionate to its share of the extended
Term Commitments).
5. Effect of Amendments and Waiver. Except as expressly set
forth herein, this Amendment shall not by implication or otherwise limit,
impair, constitute a waiver of, or otherwise affect the rights or remedies of
the Lenders, the Collateral Agent, the Syndication Agent, the Co-Documentation
Agent, the Documentation Agent or the Administrative Agent under the Credit
Agreement, as amended by this Amendment, or 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. Each of
the Additional Security Agreements (as defined below) shall constitute a
"Security Document" for all purposes of the Credit Agreement and the other Loan
Documents.
6. Representations and Warranties. Each of the Alamosa
Parties hereby represents and warrants to the Agent and the Lenders as of the
date hereof as follows:
(a) No Default or Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by the Alamosa
Parties of this Amendment have been duly authorized by all necessary corporate
and other action and do not and will not require any registration with, consent
or approval of, notice to or action by, any person (including any governmental
agency) in order to be effective and
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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.
7. Effectiveness. (a) Other than with respect to (x) the
waiver set forth in Section 3, which shall become effective immediately upon
satisfaction of the conditions set forth in paragraph (b) below and (y) the
amendment set forth in Section 4(a), which shall become effective with respect
to each Term Lender executing a separate signature block appearing on its
signature page hereto upon receipt by the Agent of counterparts hereof duly
executed and delivered by the Alamosa Parties and such Term Lender, this
Amendment shall become effective (the "Amendment Effective Date") only upon
satisfaction of the following conditions prior to 7:00 p.m., Eastern Standard
Time, on July 20, 2001:
(i) the Agent shall have received counterparts hereof duly
executed and delivered by the Alamosa Parties, the Required Lenders and
the Majority Term Lenders; and
(ii) the Borrower shall have paid an amendment fee to (x) each
Lender without a Term Commitment that has delivered an executed
counterpart of this Amendment to the Agent by the Amendment Effective
Date and (y) each Lender with a Term Commitment that has delivered an
executed counterpart of this Amendment, including a separate executed
signature block on its signature page pursuant to which such Term
Lender has agreed to extend its Term Commitment pursuant to Section 4
of this Amendment, to the Agent by the Amendment Effective Date, in
each case equal to .125% of the aggregate amount of such Lender's Term
Loans, Revolving Exposure and unutilized Commitments at such time (such
payment to be made by wire transfer of immediately available funds to
the Agent for the respective accounts of such Lenders).
(b) The waiver set forth in Section 3 shall become effective
only upon satisfaction of the following conditions:
(i) the Agent shall have received counterparts hereof duly
executed and delivered by the Alamosa Parties, the Required Lenders and
Majority Term Lenders; and
(ii) (A) the Alamosa Parties and the Collateral Agent shall
have entered into a security agreement and a blocked account agreement
and such other instruments or documents as the Collateral Agent may
reasonably request (the "Additional Security Agreements"), each in form
reasonably satisfactory to the Collateral Agent; (B) pursuant to the
Additional Security Agreements, the Borrower shall, simultaneously with
the borrowing pursuant to the waiver set forth in Section 3 above,
deposit the cash proceeds from the Term Loans
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borrowed pursuant to the waiver set forth in Section 3 above into an
account with the Collateral Agent (or an Affiliate thereof designated
by the Collateral Agent) governed by the blocked account agreement,
which cash shall secure the Obligations (other than the Xxxxxxx
Obligations, the Southwest Obligations and the WOW Obligations (each
as defined in the Security Agreement)); and (C) the Additional
Security Agreements shall provide that, so long as no Default or Event
of Default shall have occurred and be continuing, upon presentment by
the Borrower to the Collateral Agent from time to time after December
31, 2001 of paid invoices in form reasonably satisfactory to the
Collateral Agent from third party vendors evidencing purchases on
commercially reasonable terms by the Borrower (or a Subsidiary Loan
Party) of additional Collateral to be used in the Wireless
Telecommunications Business of the Borrower and its subsidiaries in
which the Collateral Agent has a first priority perfected security
interest under the Security Agreement, the Borrower may substitute
such additional Collateral for cash on deposit in the blocked account
and cash in an amount equal to such invoices shall be released to the
Borrower from the blocked account (and the Collateral Agent shall be
authorized and directed by the Lenders to take such action as may be
necessary or advisable to release such funds).
8. Expenses. The Alamosa Parties, jointly and severally, agree
to reimburse the Agent for its out_of_pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Agent.
9. GOVERNING LAW; COUNTERPARTS. (a) THIS AMENDMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) This Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all of
which together shall constitute a single instrument. Delivery of an executed
counterpart of a signature page of this Amendment by facsimile transmission
shall be as effective as delivery of a manually executed counterpart hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
ALAMOSA HOLDINGS, INC.,
By /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
ALAMOSA (DELAWARE), INC.,
By /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
ALAMOSA HOLDINGS, LLC,
By /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
CITICORP USA, INC., individually and as
Administrative Agent,
By /s/ Xxxx X. Judge
-------------------------------
Name: Xxxx X. Judge
Title: Vice President and Director
SIGNATURE PAGE to
THIRD AMENDMENT, CONSENT AND WAIVER,
dated as of July 19, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Third Amendment, Consent and Waiver:
Name of Institution:
By
-----------------------
Name:
Title:
To approve the extension of the above-named
institution's Term Commitment pursuant to
Section 4(a) of the Amendment:
By /s/ Xxxx X. Judge
------------------------------
Name: Xxxx X. Judge
Title: Vice President and Director
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SIGNATURE PAGE to
THIRD AMENDMENT, CONSENT AND WAIVER,
dated as of July 19, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Third Amendment, Consent and Waiver:
Name of Institution: COBANK, ACB
----------------------------------
By /s/ Xxxxx Xxxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
To approve the extension of the above-named
institution's Term Commitment pursuant to
Section 4(a) of the Amendment:
By /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
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SIGNATURE PAGE to
THIRD AMENDMENT, CONSENT AND WAIVER,
dated as of July 19, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Third Amendment, Consent and Waiver:
Name of Institution: THE BANK OF NOVA SCOTIA
-----------------------------
By /s/ Xxxxxxx X. Xxxx
-------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
To approve the extension of the above-named
institution's Term Commitment pursuant to
Section 4(a) of the Amendment:
By /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
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SIGNATURE PAGE to
THIRD AMENDMENT, CONSENT AND WAIVER,
dated as of July 19, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Third Amendment, Consent and Waiver:
Name of Institution: TORONTO DOMINION (TEXAS), INC.
--------------------------------
By /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
To approve the extension of the above-named
institution's Term Commitment pursuant to
Section 4(a) of the Amendment:
By /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
10
SIGNATURE PAGE to
THIRD AMENDMENT, CONSENT AND WAIVER,
dated as of July 19, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Third Amendment, Consent and Waiver:
Name of Institution: FIRST UNION NATIONAL BANK
----------------------------
By /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
To approve the extension of the above-named institution's
Term Commitment pursuant to Section 4(a) of the Amendment:
By /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
11
SIGNATURE PAGE to
THIRD AMENDMENT, CONSENT AND WAIVER,
dated as of July 19, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Third Amendment, Consent and Waiver:
Name of Institution: SOCIETE GENERALE
------------------------
By /s/ Xxxx Xxxxx-Xxxx
------------------------
Name: Xxxx Xxxxx-Xxxx
Title: Managing Director
To approve the extension of the above-named institution's
Term Commitment pursuant to Section 4(a) of the Amendment:
By /s/ Xxxx Xxxxx-Xxxx
-------------------------
Name: Xxxx Xxxxx-Xxxx
Title: Managing Director
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SIGNATURE PAGE to
THIRD AMENDMENT, CONSENT AND WAIVER,
dated as of July 19, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Third Amendment, Consent and Waiver:
Name of Institution: IBM CREDIT CORP.
---------------------
By /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager of Credit, Commercial and
Specialty Financing
To approve the extension of the above-named institution's Term
Commitment pursuant to Section 4(a) of the Amendment:
By /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager of Credit, Commercial and
Specialty Financing
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SIGNATURE PAGE to
THIRD AMENDMENT, CONSENT AND WAIVER,
dated as of July 19, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Third Amendment, Consent and Waiver:
Name of Institution: FORTIS CAPITAL CORP.
---------------------------
By /s/ Xxxx Xxxxx
--------------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
To approve the extension of the above-named institution's
Term Commitment pursuant to Section 4(a) of the Amendment:
By /s/ Xxxx Xxxxx
-----------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
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SIGNATURE PAGE to
THIRD AMENDMENT, CONSENT AND WAIVER,
dated as of July 19, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Third Amendment, Consent and Waiver:
Name of Institution: GENERAL ELECTRIC CAPITAL CORPORATION
---------------------------------------
By /s/ Xxxxx X. Xxxx
-------------------------
Name: Xxxxx X. Xxxx
Title: Manager-Operations
To approve the extension of the above-named institution's Term
Commitment pursuant to Section 4(a) of the Amendment:
By /s/ Xxxxx X. Xxxx
----------------------
Name: Xxxxx X. Xxxx
Title: Manager-Operations
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SIGNATURE PAGE to
THIRD AMENDMENT, CONSENT AND WAIVER,
dated as of July 19, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Third Amendment, Consent and Waiver:
Name of Institution: EXPORT DEVELOPMENT CORPORATION
--------------------------------
By /s/ Xxxxx Xxxxxxxxx
------------------------
Name: Xxxxx Xxxxxxxxx
Title: Loan Asset Manager
By /s/ Xxx Xxxxxx
-----------------------
Name: Xxx Xxxxxx
Title: Loan Asset Manager
To approve the extension of the above-named institution's
Term Commitment pursuant to Section 4(a) of the Amendment:
By /s/ Xxxxx Xxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Loan Asset Manager
By /s/ Xxx Xxxxxx
------------------------------
Name: Xxx Xxxxxx
Title: Loan Asset Manager
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SIGNATURE PAGE to
THIRD AMENDMENT, CONSENT AND WAIVER,
dated as of July 19, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Third Amendment, Consent and Waiver:
Name of Institution: FRANKLIN FLOATING RATE TRUST
----------------------------
By
------------------
Name:
Title:
To approve the extension of the above-named
institution's Term Commitment pursuant to
Section 4(a) of the Amendment:
By
--------------------------
Name:
Title:
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SIGNATURE PAGE to
THIRD AMENDMENT, CONSENT AND WAIVER,
dated as of July 19, 2001
to ALAMOSA HOLDINGS, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Third Amendment, Consent and Waiver:
Name of Institution: WESTDEUTSCHE LANDESBANK GIROZENTRALE
--------------------------------------
By /s/ Xxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
By /s/ Xxxxx Dervaloy
----------------------
Name: Xxxxx Dervaloy
Title: Associate Director
To approve the extension of the above-named institution's
Term Commitment pursuant to Section 4(a) of the Amendment:
By /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
By /s/ Xxxxx Dervaloy
----------------------
Name: Xxxxx Dervaloy
Title: Associate Director
