Exhibit 10.40
AMENDMENT NO. 3 AND WAIVER
Dated as of February 27, 2004
THIS AMENDMENT NO. 3 AND WAIVER (this "Amendment") is entered
into as of February 27, 2004 by and among SIERRA NEVADA WIRELESS RECEIVABLES
CORPORATION, a Delaware corporation (the "Seller"), AT&T WIRELESS SERVICES OF
NEVADA, INC., a Nevada corporation (the "Servicer"), the Committed Purchasers
and Managing Agents signatories hereto, and CITICORP NORTH AMERICA, INC., as
Program Agent (the "Program Agent").
PRELIMINARY STATEMENT
A. The parties hereto, together with the Conduit Purchasers,
are parties to that certain Amended and Restated Receivables Purchase Agreement
dated as of February 28, 2003 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "RPA"). Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
them in the RPA.
B. The parties hereto have agreed to amend the RPA subject to
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth
above, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to the RPA. Effective as of the date
hereof, subject to the satisfaction of the conditions precedent set forth in
Section 3 below, the RPA is hereby amended as follows:
1.1 The definition of "Scheduled Termination Date" appearing
in Section 1.01 is hereby amended by (a) deleting the date "February 27, 2004"
appearing in clause (i) thereof and replacing the date "February 25, 2005"
therefor, and (b) deleting the date "February 28, 2005" appearing in clause (ii)
thereof and replacing the date "February 25, 2005" therefor.
1.2 Clause (ii) of Section 3.01(b) is hereby deleted in its
entirety and replaced with the following therefor:
(ii) each of the Managing Agents and the Program Agent shall have
received the true sale/non-consolidation opinion of Xxxxxxx Coie LLP
described on Exhibit G, and date-down letters with respect to each of
the previously delivered opinions described on Exhibit G, each in form
and substance satisfactory to each such Managing Agent and the Program
Agent.
1.3 Clause (iii) of Section 3.01(b) is hereby deleted in its
entirety and replaced with the following therefor: "(iii) each Lock-Box and
Lock-Box Account shall have been effectively transferred into the name of the
Seller."
1.4 The initial paragraph of Section 8.01 is hereby amended by
inserting the parenthetical phrase "(including, without limitation, acting in
any capacity related to a Conduit Purchaser)" immediately following the phrase
"the Seller hereby agrees to indemnify any Purchaser" appearing in the third
line thereof.
1.5 Schedule II to the RPA is hereby deleted in its entirety
and replaced with a new Schedule II in the form of Annex A hereto.
1.6 The amount of the Conduit Purchase Limit of each Conduit
Purchaser is hereby amended, if applicable, to be the amount set forth opposite
such Conduit Purchaser's name on Annex B hereto.
1.7 The amount of the Commitment of each Committed Purchaser
is hereby amended, if applicable, to be the amount set forth opposite such
Committed Purchaser's name on the signature pages to this Amendment following
the caption "Commitment".
SECTION 2. Waiver. Pursuant to Section 5.01(g)(iv) of the RPA,
the Seller is required, within 120 days after the date of the RPA, to deliver to
the Program Agent and each Managing Agent fully executed copies of Lock-Box
Agreements with respect to each Lock-Box and each Lock-Box Account. Effective as
of the date first written above, subject to the satisfaction of the conditions
precedent set forth in Section 3 below, the Program Agent and each Managing
Agent hereby waives until April 30, 2004 the requirement that the Seller provide
the Lock-Box Agreement with respect to the Lock-Box Accounts held at JPMorgan
Chase Bank. The Program Agent and the Managing Agents hereby expressly reserve
all of their rights with respect to the failure of the Seller to perform each of
the other obligations required to be performed by it pursuant to the RPA. This
specific waiver applies only to the above-specified provision and only for the
above specified period.
SECTION 3. Conditions Precedent. This Amendment shall become
effective and be deemed effective as of the date first above written upon the
Program Agent's having received (i) counterparts of this Amendment duly executed
by each party hereto and (ii) a Reaffirmation of Performance Undertaking, in the
form of Annex C hereto, duly executed by AT&T Wireless Services, Inc.
SECTION 4. Covenants, Representations and Warranties of the
Seller and Servicer.
4.1 Upon the effectiveness of this Amendment, each of the
Seller and the Servicer hereby reaffirms all covenants, representations and
warranties made by it, to the extent the same are not amended hereby, in the RPA
and agrees that all such covenants, representations and warranties shall be
deemed to have been re-made as of the effective date of this Amendment.
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4.2 Each of the Seller and the Servicer hereby represents and
warrants (i) that this Amendment constitutes the legal, valid and binding
obligation of such Person enforceable against such Person in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general principles of equity which may limit the
availability of equitable remedies and (ii) upon the effectiveness of this
Amendment, no event shall have occurred and be continuing which constitutes an
Event of Termination or an event that with the passage of time or the giving of
notice, or both, would constitute an Event of Termination.
SECTION 5. Reference to and Effect on the RPA.
5.1 Upon the effectiveness of this Amendment, each reference
in the RPA to "this Agreement," "hereunder," "hereof," "herein," "hereby" or
words of like import shall mean and be a reference to the RPA as amended hereby,
and each reference to the RPA in any other document, instrument or agreement
executed and/or delivered in connection with the RPA shall mean and be a
reference to the RPA as amended hereby.
5.2 Except as specifically amended hereby, the RPA and other
documents, instruments and agreements executed and/or delivered in connection
therewith shall remain in full force and effect and are hereby ratified and
confirmed.
5.3 The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy under the
RPA or any of the other Facility Documents, nor constitute a waiver of any
provision contained therein, except as specifically set forth herein.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
SECTION 8. Headings. Section headings in this Amendment are
included herein for convenience or reference only and shall not constitute a
part of this Amendment for any other purpose.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereto duly authorized as
of the date first written above.
SIERRA NEVADA WIRELESS RECEIVABLES
CORPORATION, as Seller
By: /s/ Xxxxx Xxxxxx
__________________________
Name: Xxxxx Xxxxxx
Title: President/Treasurer
AT&T WIRELESS SERVICES OF NEVADA,
INC., as Servicer
By: /s/ Xxx Xxxxxxxx
__________________________
Name: Xxx Xxxxxxxx
Title: Assistant Treasurer
Signature Page to
Amendment No. 3 to
Amended and Restated Receivables Purchase Agreement
CITICORP NORTH AMERICA, INC., as a
Managing Agent and as Program Agent
By: /s/ Xxxxxxx X. Xxxxx
________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Commitment: $275,000,000 CITIBANK, N.A., as a Committed Purchaser
By: /s/ Xxxxxxx X. Xxxxx
________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Commitment: $75,000,000 DANSKE BANK A/S, CAYMAN ISLANDS
BRANCH, as a Committed Purchaser
By: /s/ Xxxxx Xxxx
________________________
Name: Xxxxx Xxxx
Title: Vice President
By: /s/ Xxxx X. X'Xxxxx
________________________
Name: Xxxx X. X'Xxxxx
Title: Assistant General Manager
Signature Page to
Amendment No. 3 to
Amended and Restated Receivables Purchase Agreement
Commitment: $250,000,000 BANK OF AMERICA, N.A., as a Managing Agent
and as a Committed Purchaser
By: /s/ Xxxxxxxx Xxxxxxx
________________________
Name: Xxxxxxxx Xxxxxxx
Title: Principal
Signature Page to
Amendment No. 3 to
Amended and Restated Receivables Purchase Agreement
Commitment: $250,000,000 BNP PARIBAS, as a Managing Agent and as a
Committed Purchaser
By: /s/ Xxxxxxx Xxxxx
________________________
Name: Xxxxxxx Xxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxx
________________________
Name: Xxxxxxx Xxxxx
Title: Vice President
Signature Page to
Amendment No. 3 to
Amended and Restated Receivables Purchase Agreement
Commitment: $300,000,000 HSBC BANK USA, as a Committed Purchaser
By: /s/ Sandeep Pehwa
________________________
Name: Sandeep Pehwa
Title: SVP
HSBC SECURITIES (USA), INC.,
as a Managing Agent
By: /s/ Xxxxxx Xxxxxxx
________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
Signature Page to
Amendment No. 3 to
Amended and Restated Receivables Purchase Agreement
Commitment: $250,000,000 ASSET ONE SECURITIZATION, LLC, as a
Committed Purchaser
By: /s/ Xxxxxx Xxxxxxxxxx
________________________
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
SOCIETE GENERALE, as a Managing Agent
By: /s/ Xxxx X. Xxxxxxxx
________________________
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Signature Page to
Amendment No. 3 to
Amended and Restated Receivables Purchase Agreement
Commitment: $200,000,000 THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH, as a Managing Agent and
as a Committed Purchaser
By: /s/ Xxxxxxx XxXxxx
________________________
Name: Xxxxxxx XxXxxx
Title: Senior Vice President
By: /s/ Xxxxxxx XxXxxx
________________________
Name: Xxxxxxx XxXxxx
Title: Senior Vice President
Signature Page to
Amendment No. 3 to
Amended and Restated Receivables Purchase Agreement
Annex A
SCHEDULE II
GROUP PURCHASE LIMITS
PURCHASE GROUP GROUP PURCHASE LIMIT
-------------- --------------------
CNAI Purchase Group $350,000,000
HSBC Purchase Group $300,000,000
BNP Purchase Group $250,000,000
BOA Purchase Group $250,000,000
SG Purchase Group $250,000,000
BTM Purchase Group $200,000,000
Annex B
CONDUIT PURCHASE LIMITS
CONDUIT PURCHASER CONDUIT PURCHASE LIMIT
----------------- ----------------------
XXXXXX, LLC $150,000,000
CAFCO, LLC $200,000,000
Bryant Park Funding LLC $300,000,000
Xxxxxxxx Funding Corporation $250,000,000
Receivables Capital Corporation $250,000,000
Asset One Securitization, LLC $250,000,000
Gotham Funding Corporation $200,000,000
Annex C
REAFFIRMATION OF PERFORMANCE UNDERTAKING
The undersigned hereby:
(i) acknowledges receipt of that certain Amendment No. 3 and
Waiver, dated as of February 27, 2004 (the "Amendment") to the Amended and
Restated Receivables Purchase Agreement dated as of February 28, 2003 (as such
Amended and Restated Receivables Purchase Agreement has been amended, restated,
supplemented or otherwise modified from time to time, the "Purchase Agreement")
by and among Sierra Nevada Wireless Receivables Corporation, a Delaware
corporation (the "Seller"), AT&T Wireless Services of Nevada, Inc., a Nevada
corporation (the "Servicer"), the "Purchasers" party thereto, the "Managing
Agents" party thereto, and Citicorp North America, Inc., as Program Agent (the
"Program Agent");
(ii) reaffirms all of its obligations under that certain
Amended and Restated Performance Undertaking dated as of February 28, 2003 (the
"Performance Undertaking"), made by the undersigned in favor of the Program
Agent, for the benefit of itself, the Managing Agents and the Purchasers; and
(iii) acknowledges and agrees that the Performance Undertaking
remains in full force and effect notwithstanding the Amendment and that the
Performance Undertaking is hereby ratified and confirmed in all respects.
Date: February 27, 2004
AT&T WIRELESS SERVICES, INC.
By: /s/ Xxxxx Xxxxxx
__________________________
Name: Xxxxx Xxxxxx
Title: VP/Treasurer
