EXHIBIT 10.22
EXECUTION COPY
SECURITY AGREEMENT
This security agreement (this "Agreement"), dated as of January
31, 2001, among Alamosa (Delaware), Inc., a Delaware corporation (the
"Company"), Xxxxx Fargo Bank Minnesota, N.A., as security agent (in such
capacity the "Security Agent"), Xxxxx Fargo Bank Minnesota, N.A., as
collateral agent (in such capacity, the "Collateral Agent") for Xxxxx Fargo
Bank Minnesota, N.A., as trustee (in such capacity, the "2001 Trustee")
under the 2001 Indenture (as defined herein) and for Xxxxx Fargo Bank
Minnesota, N.A., as trustee (in such capacity, the "2000 Trustee", and
together with the 2001 Trustee, the "Trustees") under the 2000 Indenture,
the 2001 Trustee (as to paragraph 6(b)) and the 2000 Trustee (as to
paragraph 6(b)).
RECITALS
A. Pursuant to an Indenture dated as of January 31, 2001 (the
"2001 Indenture") among the Company, certain subsidiaries of the Company
(the "Subsidiary Guarantors") and the 2001 Trustee, the Company is issuing
$250,000,000 aggregate principal amount of its 12 1/2% Senior Notes due
2011, including any notes issued in exchange therefor in connection with
one or more registration statements (the "2001 Notes").
B. Pursuant to an Indenture dated as of February 8, 2000 (the
"2000 Indenture", and together with the 2001 Indenture, the "Indentures")
among the Company, certain subsidiaries of the Company and the 2000
Trustee, the Company issued $350,000,000 aggregate principal amount at
maturity of its 12 7/8% Senior Discount Notes due 2010 (the "2000 Notes",
and together with the 2001 Notes, the "Notes").
C. As security for its obligations under the Notes and the
Indentures, the Company hereby grants to the Collateral Agent, for the
equal and ratable benefit of the 2000 Trustee and the 2001 Trustee and the
holders of the 2000 Notes and the 2001 Notes, a security interest, subject
to and pending disbursement pursuant to this Agreement, in the Security
Account (as defined herein).
D. The parties have entered into this Agreement in order to set
forth the conditions upon which, and the manner in which, funds will be
disbursed from the Security Account and released from the security interest
and lien described above.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows;
1. Defined Terms. Capitalized terms used and not defined herein shall
have the meanings assigned to such terms in either of the Indentures. In
addition to any other defined terms used herein, the following terms shall
constitute defined terms for purposes of this Agreement and shall have the
meanings set forth below:
"Applied" means that disbursed funds have been applied (i) to
the scheduled payment of interest on the Notes, (ii) to the release to the
Company in accordance with Section 3(c) hereof; or (iii) to any combination
of the foregoing.
"Available Funds" means (A) the sum of (i) the Initial Escrow
Amount and (ii) dividends and other earnings paid on the funds in the
Security Account (including holdings of U.S. Government Obligations), less
(B) the aggregate disbursements previously made pursuant to this Agreement.
"Business Day" shall have the meaning given such term in the
Indentures.
"Collateral" shall have the meaning given in Section 6(a)
hereof.
"Eligible Institution" means a commercial banking institution
that has combined capital and surplus of not less than $500 million or its
equivalent in foreign currency, whose debt is rated "A" (or higher)
according to Standard & Poor's Ratings Services ("S&P") or Xxxxx'x
Investors Service, Inc. ("Moody's") at the time as of which any investment
or rollover therein is made.
"Interest Payment Date", with respect to any Notes, means the
Interest Payment Date for such Notes as set forth in the applicable
Indenture.
"Initial Escrow Amount" shall mean $59,000,000 of the proceeds
from the offering of the 2001 Notes.
"Collateral Agent Payment Notice and Disbursement Request"
means a notice sent by the Collateral Agent on behalf of either the 2001
Trustee or the 2000 Trustee to the Security Agent notifying the Security
Agent of an upcoming Interest Payment Date in respect of the 2000 Notes or
the 2001 Notes and requesting a disbursement, in substantially the form of
Exhibit B hereto. Each Collateral Agent Payment Notice and Disbursement
Request shall be signed by an officer of the Collateral Agent designated in
a certificate of the Collateral Agent setting forth specimen signatures of
authorized officers delivered to the Security Agent.
"Trustee Notice and Disbursement Request" means a notice sent
by the 2001 Trustee or the 2000 Trustee to the Collateral Agent notifying
the Collateral Agent of an upcoming Interest Payment Date in respect of the
2000 Notes or the 2001 Notes and requesting a disbursement, in
substantially the form of Exhibit A hereto. Each Trustee Payment Notice and
Disbursement Request shall be signed by an officer of either of the 2001
Trustee or the 2000 Trustee designated in a certificate of the 2001 Trustee
or the 2000 Trustee setting forth specimen signatures of authorized
officers delivered to the Collateral Agent.
"Security Account" shall mean the Security Account No. 00000000
established by the Security Agent at Xxxxx Fargo Bank Minnesota, N.A.,
Sixth & Marquette, MAC X0000-000, Xxxxxxxxxxx, XX 00000, ABA# 000000000 in
the name "Alamosa (Delaware), Inc." and pursuant to Section 2(a) hereof.
"Security Account Statement" shall have the meaning given in
Section 2(f) hereof.
2. Security Account; Security Agent.
(a) Appointment of Security Agent; Establishment of Security
Account. The Company and the Collateral Agent on behalf of the 2001 Trustee
and the 2000 Trustee hereby appoint the Security Agent, and the Security
Agent hereby accepts appointment, as Security Agent, under the terms and
conditions of this Agreement.
Concurrently with the execution and delivery hereof, the
Security Agent shall establish the Security Account at its office located
at Minneapolis, Minnesota. Subject to Section 3, Section 5 and the other
terms and conditions of this Agreement, all funds accepted by the Security
Agent pursuant to this Agreement shall be held in the Security Account, and
all amounts from time to time in the Security Account shall be held for the
equal and ratable benefit of the holders of the Notes. For all purposes
under this Agreement, when making ratability calculations concerning the
distribution of funds between holders of the 2001 Notes and holders of the
2000 Notes, such calculations shall be made by taking the Accreted Value of
the 2000 Notes outstanding at such time as the amount of the 2000 Notes
outstanding and by taking the principal amount of 2001 Notes outstanding at
such time, plus all accrued but unpaid interest thereon, as the amount of
the 2001 Notes outstanding. All such funds shall be held in the Security
Account until disbursed in accordance with the terms hereof. The Security
Account shall be under the sole dominion and control of the Security Agent
for the equal and ratable benefit of the holders of the Notes. Concurrently
with the execution and delivery hereof, the Company shall deliver the
Initial Escrow Amount to the Security Agent for credit to the Security
Account against the Security Agent's written acknowledgment and receipt of
the Initial Escrow Amount.
(b) Security Agent Compensation. The Company shall pay to the
Security Agent such compensation for services to be performed by it under
this Agreement as are set forth in Exhibit A to this Agreement.
The Company shall reimburse the Security Agent upon request for
all reasonable expenses, disbursements, and advances incurred or made by
the Security Agent in implementing any of the provisions of this Agreement,
including reasonable compensation, expenses and disbursements of its
counsel (such compensation, expenses and disbursements of counsel not to
exceed $15,000 in the aggregate), except any such expense, disbursement, or
advance as may arise from its gross negligence or wilful misconduct.
(c) Investment of Funds in Security Account. Funds credited to
the Security Account shall be invested and reinvested upon the following
terms and conditions:
(i) Acceptable Investments. All funds credited to the Security
Account shall be initially invested by the Security Agent in U.S.
Government Obligations in accordance with the Company's written
instructions to the Security Agent. Thereafter, the Security Agent
shall invest all funds (including proceeds of any such investments at
maturity and dividends paid and other earnings on any such
investments) in the Security Account in cash items or U.S. Government
Obligations designated by the Company in writing from time to time.
All U.S. Government Obligations in respect of the Security Account
shall be assigned and credited to and held in the possession of or,
in the case of U.S. Government Obligations in respect of the Security
Account maintained in book entry form with the Federal Reserve Bank,
transferred to a book entry account in the name of, the Security
Agent in respect of the Security Account, for the equal and ratable
benefit of the holders of the Notes (subject to Section 3 and Section
5), with such guarantees as are customary, except that U.S.
Government Obligations in respect of the Security Account maintained
in book entry form with the Federal Reserve Bank shall be transferred
to a book entry account in the name of the Security Agent at the
Federal Reserve Bank that includes only U.S. Government Obligations
held by the Security Agent for its customers and segregated by
separate recordation in respect of the Security Account in the books
and records of the Security Agent, subject to the provisions of
Section 5 hereof.
(ii) Security Interest in Investments. No investment of funds
in the Security Account shall be made unless the Company has
certified to the Security Agent and the Collateral Agent acting for
the equal and ratable benefit of the 2000 Trustee and the holders of
the 2000 Notes and the 2001 Trustee and the holders of the 2001 Notes
that, upon such investment, the Collateral Agent acting for the equal
and ratable benefit of the 2000 Trustee and the holders of the 2000
Notes and the 2001 Trustee and the holders of the 2001 Notes, will
have a (to the Company's knowledge, with respect to priority only)
first priority perfected security interest in the applicable
investment. A certificate as to a class of investments need not be
issued with respect to individual investments in securities in that
class if the certificate applicable to the class remains accurate
with respect to such individual investments. Counsel to the Company
shall provide an Opinion of Counsel to the Security Agent or either
Trustee, as applicable, in the event any such opinion is required for
the applicable indenture to remain in compliance with the Trust
Indenture Act of 1939.
(iii) Dividends and other Earnings. All dividends and other
earnings paid on funds invested in U.S. Government Obligations shall
be credited to the Security Account as additional Collateral for the
benefit of the holders of the Notes (subject to Section 3 and Section
5) and shall be reinvested in accordance with the terms hereof at the
Company's written instruction.
(iv) Limitation on Security Agent's Responsibilities. The
Security Agent's sole responsibilities under this Section 2 shall be
(A) to retain possession of certificated U.S. Government Obligations
(except, however, that the Security Agent may surrender possession to
the issuer of any such U.S. Government Obligations for the purposes
of effecting assignment, crediting interest, or reinvesting such
security or reducing such security to cash) and to be the registered
or designated owner of U.S. Government Obligations which are not
certificated, (B) to follow the Company's written instructions given
in accordance with Section 2(c)(i) hereof, (C) to invest and reinvest
funds pursuant to this Section 2(c) and (D) to use its best efforts
to reduce to cash such U.S. Government Obligations as may be required
to fund any disbursement in accordance with Section 3 hereof. In
connection with clause (A) above, the Security Agent will maintain
continuous possession in the State of New York of certificated U.S.
Government Obligations and cash included in the Collateral and will
cause uncertificated U.S. Government Obligations to be registered in
the book-entry system of, and transferred to an account of the
Security Agent at, the Federal Reserve Bank of New York.
(d) Substitution of Security Agent. The Security Agent may
resign by giving no less than 30 days' prior written notice to the Company
and the Collateral Agent acting on behalf of the 2001 Trustee and the 2000
Trustee. Such resignation shall take effect upon the later to occur of (i)
delivery of all funds and U.S. Government Obligations maintained by the
Security Agent hereunder and copies of all books, records, plans and other
documents in the Security Agent's possession relating to such funds or U.S.
Government Obligations or this Agreement to a successor Security Agent
appointed by the Company and (ii) the Company, the Collateral Agent acting
on behalf of the 2001 Trustee and the 2000 Trustee and such successor
Security Agent entering into this Agreement or any written successor
agreement no less favorable to the interests of the holders of the Notes
and the Collateral Agent acting on behalf of the 2001 Trustee and the 2000
Trustee than this Agreement; and the Security Agent shall thereupon be
discharged of all obligations under this Agreement and shall have no
further duties, obligations or responsibilities in connection herewith. If
a successor Security Agent has not been appointed or has not accepted such
appointment within 30 days after notice of resignation is given to the
Company, the Security Agent may apply to a court of competent jurisdiction
for the appointment of a successor Security Agent and no such resignation
shall take effect until such appointment of a successor Security Agent is
made and the terms of the second sentence of this Section 2(d) have been
complied with.
(e) Security Account Statement. Each month, the Security Agent
shall deliver to the Company, the Collateral Agent, the 2001 Trustee and
the 2000 Trustee a statement of the Security Agent in a form reasonably
satisfactory to the Company and the Collateral Agent setting forth with
reasonable particularity the balance of funds then in the Security Account
and the manner in which such funds have been and are invested (the
"Security Account Statement"). The parties hereto irrevocably instruct the
Security Agent that on the first date upon which the balance in the
Security Account (including the holdings of all U.S. Government Obligations
is reduced to zero, the Security Agent shall, as soon as practicable,
deliver to the Company, to the 2001 Trustee, the 2000 Trustee and to the
Collateral Agent a written notice that the balance in the Security Account
has been reduced to zero.
(f) Representations of Security Agent. The Security Agent
represents and warrants that (i) the Security Account created by the
Security Agent for purposes of this Agreement is a "securities account" as
defined under Section 8-501 of the UCC and (ii) the Security Agent is a
"security intermediary" as defined under Section 8-102(a) of the UCC.
3. Disbursements.
(a) Trustee Payment Notice and Disbursement Request;
Disbursements. The applicable Trustee shall, four Business Days prior to a
scheduled Interest Payment Date with respect to any of the Notes, submit to
the Collateral Agent a completed Trustee Payment Notice and Disbursement
Request substantially in the form of Exhibit A hereto. In addition, the
applicable Trustee shall submit to the Collateral Agent a completed Trustee
Payment Notice and Disbursement Request substantially in the form of
Exhibit A hereto in the event that the condition set forth in the first
sentence of Section 3(d) is fulfilled.
(b) Collateral Agent Payment Notice and Disbursement Request;
Disbursements. The Collateral Agent, upon receipt of a Trustee Payment
Notice, shall, four Business Days prior to a scheduled Interest Payment
Date with respect to any of the Notes, submit to the Security Agent a
completed Collateral Agent Payment Notice and Disbursement Request
substantially in the form of Exhibit B hereto. In addition, the Collateral
Agent shall submit to the Security Agent a completed Collateral Agent
Payment Notice and Disbursement Request substantially in the form of
Exhibit B hereto in the event that the condition set forth in the first
sentence of Section 3(d) is fulfilled.
The Security Agent's disbursement pursuant to any Collateral
Agent Payment Notice and Disbursement Request shall be subject to the
satisfaction of the applicable conditions set forth in Section 3(c) hereof.
Provided such Payment Notice and Disbursement Request is not rejected by it
for failure to comply with Section 3(c), the Security Agent, within two (2)
Business Days following receipt of such Collateral Agent Payment Notice and
Disbursement Request, shall disburse the funds requested in such Payment
Notice and Disbursement Request by wire or book-entry transfer of
immediately available funds to the account of the applicable Trustee.
(c) Conditions Precedent to Disbursement. The Security Agent's
payment of any disbursement shall be made only if: (A) the Collateral Agent
shall have submitted, in accordance with the provisions of Section 3(b)
herein, a completed Collateral Agent Payment Notice and Disbursement
Request to the Security Agent substantially in the form of Exhibit B hereto
with blanks appropriately filled in; provided, however, that the Security
Agent shall notify the Collateral Agent as soon as reasonably possible (but
not later than two (2) Business Days from the date of receipt of the
Collateral Agent Payment Notice and Disbursement Request) if any Collateral
Agent Payment Notice and Disbursement Request is rejected for failure to
comply with Section 3(b) and the reasons therefor and upon such
notification, the Collateral Agent shall thereupon resubmit the Payment
Notice and Disbursement Request with appropriate changes; and (B) the
Security Agent and the Collateral Agent shall not have received any notice
from the 2000 Trustee or the 2001 Trustee that there has occurred and is
continuing an Event of Default (as defined in the Indentures) (in which
event the Security Agent shall apply all Available Funds as required by
Section 6(c)(iii) hereof). Notwithstanding the previous sentence, in the
event that an Event of Default shall have previously occurred but shall at
the time of the Collateral Agent's submission of a completed Collateral
Agent Payment Notice and Disbursement Request to the Security Agent such
Event of Default shall no longer be continuing, then the Security Agent
shall disburse the requested funds as set forth in the Collateral Agent
Payment Notice and Disbursement Request.
(d) Final Release. In the event there are any Available Funds
following the disbursement to be made in connection with the interest
payment on the 2001 Notes due February 1, 2003, such Available Funds
(including U.S. Government Obligations Investments) shall be paid to the
Company immediately upon the submission to the Security Agent of a
completed Payment Notice and Disbursement Request substantially in the form
of Exhibit A hereto; provided, however, that no Event of Default shall have
occurred and be continuing at the time of the submission of such notice.
Notwithstanding the previous sentence, in the event that an Event of
Default shall have previously occurred but shall at the time of the
Collateral Agent's submission of a completed Collateral Agent Payment
Notice and Disbursement Request to the Security Agent such Event of Default
shall no longer be continuing, then the Security Agent shall disburse the
requested funds as set forth in the Collateral Agent Payment Notice and
Disbursement Request. At such time as all amounts in the Security Account
shall have been disbursed or released in accordance with this Agreement,
the security interest in the Collateral evidenced by this Agreement shall
terminate and be of no further force and effect. In addition, upon release
or disbursement of any Collateral from the Security Account in accordance
with the terms of this Agreement, the security interest evidenced by this
Escrow Agreement in the Collateral so released shall terminate and be of no
further force and effect.
4. Security Agent.
Limitation of the Security Agent's Liability; Responsibilities
of the Security Agent. The Security Agent's responsibility and liability
under this Agreement shall be limited as follows: (i) the Security Agent
does not represent, warrant or guaranty to the holders of the Notes from
time to time the performance of the Company; (ii) the Security Agent shall
have no responsibility to the Company or the holders of the Notes or the
Collateral Agent from time to time as a consequence of the performance by
the Security Agent hereunder, except for any gross negligence or wilful
misconduct of the Security Agent and except with respect to claims based
upon such gross negligence or wilful misconduct that are successfully
asserted against the Security Agent; (iii) the Company shall remain solely
responsible for all aspects of the Company's business and conduct; and (iv)
the Security Agent is not obligated to supervise, inspect, or inform the
Company or any third party of any matter referred to above.
No implied covenants or obligations shall be inferred from this
Agreement against the Security Agent, nor shall the Security Agent be bound
by the provisions of any agreement beyond the specific term hereof.
Specifically and without limiting the foregoing, the Security Agent shall
in no event have any liability in connection with its investment,
reinvestment or liquidation, in good faith and in accordance with the terms
hereof, of any funds or U.S. Government Obligations held by it hereunder,
including without limitation any liability for any delay not resulting from
gross negligence or willful misconduct in such investment, reinvestment or
liquidation, or for any loss of principal or income incident to any such
delay.
The Security Agent shall be entitled to rely upon any judicial
order or judgment, upon any written Opinion of Counsel or upon any
certification, instruction, notice, or other writing delivered to it by the
Company or the Collateral Agent in compliance with the provisions of this
Agreement without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of
service thereof. The Security Agent may act in reliance upon any instrument
comporting with the provisions of this Agreement or signature believed by
it to be genuine and may assume that any person purporting to give notice
or receipt or advice or make any statement or execute any document in
connection with the provisions hereof has been duly authorized to do so.
At any time, the Security Agent may request in writing an
instruction in writing from the Company, and may at its own option include
in such request the course of action it proposes to take and the date on
which it proposes to act, regarding any matter arising in connection with
its duties and obligations hereunder; provided, however, that the Security
Agent shall state in such request that it believes in good faith that such
proposed course of action is consistent with another identified provision
of this Agreement. The Security Agent shall not be liable to the Company
for acting without the Company's consent in accordance with such a proposal
on or after the date specified therein if (i) the specified date is at
least two Business Days after the Company receives the Security Agent's
request for instructions and its proposed course of action, which
instructions shall have been delivered to the Company at least two Business
Days prior to such action and (ii) prior to so acting, the Security Agent
has not received the written instructions requested from the Company, which
instructions shall have been delivered to the Company at least two Business
Days prior to such action.
The Security Agent may act pursuant to the written advice of
counsel chosen by it with respect to any matter relating to this Agreement
and (subject to this Section 4) shall not be liable for any action taken or
omitted in accordance with such advice.
The Security Agent shall not be called upon to advise any party
as to selling or retaining, or taking or refraining from taking any action
with respect to, any securities or other property credited hereunder.
In the event of any ambiguity in the provisions of this
Agreement with respect to any funds or property credited hereunder, the
Security Agent shall be entitled to refuse to comply with any and all
claims, demands or instructions with respect to such property or funds, and
the Security Agent shall not be or become liable for its failure or refusal
to comply with conflicting claims, demands or instructions. The Security
Agent shall be entitled to refuse to act until either any conflicting or
adverse claims or demands shall have been finally determined by a court of
competent jurisdiction or settled by agreement between the conflicting
claimants as evidenced in a writing, satisfactory to the Security Agent, in
which event the Security Agent shall act in accordance with such
determination or agreement.
No provision of this Agreement shall require the Security Agent
to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder.
The Security Agent shall not be required to institute legal
proceedings of any kind and shall not be required to initiate or defend any
legal proceedings which may be instituted against it in respect of the
subject matter of this Agreement. If the Security Agent does elect to act
it will do so only to the extent that it is indemnified to its satisfaction
against the cost and expense of such defense or initiation.
5. Indemnity. (a) The Company shall indemnify, hold harmless and
defend the Security Agent and its directors, officers, agents, employees
and controlling persons, from and against any and all claims, actions,
obligations, liabilities and expenses, including defense costs,
investigative fees and costs, reasonable legal fees, and claims for damages
arising from the Security Agent's performance under this Agreement, except
to the extent that such liability, cost, legal fee, obligation, action,
expense or claim is directly attributable to the gross negligence or wilful
misconduct of any of the foregoing persons. The Security Agent shall not be
entitled to recover any costs arising under this Section 5 from funds
available in the Security Account. The provisions of this Section shall
survive any termination, satisfaction or discharge of this Agreement as
well as the resignation or removal of the Security Agent.
(b) The Company shall indemnify, hold harmless and defend the
Collateral Agent and its directors, officers, agents, employees and
controlling persons, from and against any and all claims, actions,
obligations, liabilities and expenses, including defense costs,
investigative fees and costs, reasonable legal fees, and claims for damages
arising from the Collateral Agent's performance under this Agreement,
except to the extent that such liability, cost, legal fee, obligation,
action, expense or claim is directly attributable to the gross negligence
or wilful misconduct of any of the foregoing persons. The Collateral Agent
shall not be entitled to recover any costs arising under this Section 5
from funds available in the Collateral Account. The provisions of this
Section shall survive any termination, satisfaction or discharge of this
Agreement as well as the resignation or removal of the Collateral Agent.
6. Grant of Security Interest; Appointment of Collateral Agent;
Instructions to Security Agent.
(a) The Company hereby irrevocably grants a (to the Company's
knowledge, with respect to priority only) first priority security interest
to the Collateral Agent acting for the equal and ratable benefit of the
2001 Trustee for the benefit of the holders of the 2001 Notes and the 2000
Trustee for the benefit of the holders of the 2000 Notes in all of the
Company's right, title and interest in the Security Account, all funds
credited therein and all U.S. Government Obligations held by (or otherwise
maintained in the name of) the Security Agent pursuant to Section 2 hereof
and credited to the Security Account, as well as all rights of the Company
under this Agreement (collectively, the "Collateral"), in order to secure
all obligations and indebtedness of the Company under the Notes and the
Indentures. The Company shall take all actions necessary on its part to
insure the continuance of a (to the Company's knowledge, with respect to
priority only) first priority security interest, for the term of this
Agreement, in the Collateral in favor of the Collateral Agent for the equal
and ratable benefit of the Trustees in order to secure such obligations and
indebtedness.
(b) The Collateral Agent hereby declares and agrees, and each
of the 2001 Trustee and the 2000 Trustee agrees, that the Collateral Agent
holds the Collateral as contemplated by Section (a) above as agent under
the Agreement for the benefit of the 2001 Trustee and the holders of the
2001 Notes and the 2000 Trustee and the holders of the 2000 Notes as
provided herein. By acceptance of the benefits of this Agreement, the 2001
Trustee and the 2000 Trustee (i) consent to the appointment of the
Collateral Agent as agent hereunder, (ii) confirm that the Collateral Agent
shall have the authority to act as the exclusive agent of the 2001 Trustee
and the 2000 Trustee for enforcement of any remedies under or with respect
to this Agreement and the giving or withholding of any consent or approval
relating to any Collateral of either of the 2001 Trustee's or the 2000
Trustee's obligations with respect thereto and (iii) agree that, except as
provided in this Agreement, it shall not take any action to enforce any of
such remedies or give any such consents or approvals.
(c) The Company and the Collateral Agent hereby irrevocably
instruct the Security Agent to, and the Security Agent will, (i) (A)
maintain sole dominion and control over funds credited to the Security
Account for the benefit of the Collateral Agent acting for the equal and
ratable benefit of the 2001 Trustee for the benefit of the holders of the
2001 Notes and the 2000 Trustee for the benefit of the 2000 Notes to the
extent specifically required herein, (B) maintain, or cause its agent
within the State of New York to maintain, possession of all certificated
U.S. Government Obligations purchased hereunder that are physically
possessed by the Security Agent in order for the Collateral Agent acting
for the equal and ratable benefit of the 2001 Trustee for the benefit of
the holders of the 2001 Notes and the 2000 Trustee for the benefit of the
2000 Notes to enjoy a continuous perfected first priority security interest
therein under the laws of the State of New York (the Company hereby
agreeing that in the event any certificated U.S. Government Obligations are
in the possession of the Company or a third party, the Company shall use
its commercially reasonable efforts to deliver all such certificates to the
Security Agent for credit to the Security Account for the benefit of the
Collateral Agent acting for the equal and ratable benefit of the 2001
Trustee for the benefit of the holders of the 2001 Notes and the 2000
Trustee for the benefit of the 2000 Notes) and (C) maintain the Collateral
free and clear of all liens, security interests, safekeeping or other
charges, demands and claims against the Security Agent of any nature now or
hereafter existing in favor of anyone other than the Collateral Agent; (ii)
promptly notify the Collateral Agent if the Security Agent receives written
notice that any person other than the Collateral Agent has a lien or
security interest upon any portion of the Collateral and (iii) in addition
to disbursing amounts held in escrow pursuant to any Payment Notice and
Disbursement Requests given to it by the Collateral Agent pursuant to
Section 3, upon receipt of both (A) written notice from the Collateral
Agent that either (x) as a result of an Event of Default the indebtedness
represented by the 2000 Notes or the 2001 Notes has been accelerated or (y)
the maturity date of the 2000 Notes or the 2001 Notes has occurred, under
either of the Indentures, and (B) direction from the Collateral Agent to
disburse all Available Funds to the applicable Trustee, as promptly as
practicable, after following the procedures set forth in the fourth
paragraph of Section 4, the Security Agent shall disburse all funds held in
the Security Account to the applicable Trustee and transfer title to all
U.S. Government Obligations held by the Security Agent hereunder to the
Collateral Agent acting for the equal and ratable benefit of the 2001
Trustee for the benefit of the holders of the 2001 Notes and the 2000
Trustee for the benefit of the 2000 Notes. The lien and security interest
provided for by this Section 6 shall automatically terminate and cease as
to, and shall not extend or apply to, and the Collateral Agent shall have
no security interest in, any funds disbursed by the Security Agent to the
Company pursuant to this Agreement. The Security Agent shall act solely as
the Collateral Agent's agent in connection with the duties under this
Section 6, notwithstanding any other provision contained in this Agreement,
without any right to receive compensation from the Collateral Agent and
without any authority to obligate the Collateral Agent or to compromise or
pledge its security interest hereunder.
(d) Any money and U.S. Government Obligations collected by the
2001 Trustee or the 2000 Trustee pursuant to Section 6(c)(iii) shall be
applied as provided in the Indentures.
(e) The Company will execute and deliver to the Collateral
Agent such instruments and documents as may be required or as the
Collateral Agent may reasonably deem necessary or advisable to confirm or
perfect the rights of the Collateral Agent under this Agreement and the
Collateral Agent's interest in the Collateral. The Company will take all
necessary action to preserve and protect the security interest created
hereby as a lien and encumbrance upon the Collateral.
(f) The Company hereby appoints the Collateral Agent as its
attorney-in-fact effective upon either (i) the acceleration of the
indebtedness represented by the 2000 Notes or the 2001 Notes due to the
occurrence of an Event of Default under either of the Indentures or (ii)
the maturity of the 2000 Notes or the 2001 Notes, with full power of
substitution to do any act which the Company is obligated hereto to do, and
the Collateral Agent may exercise such rights as the Company might exercise
with respect to the Collateral and to take any action in the Company's name
to protect the Collateral Agent's security interest hereunder. Prior to the
occurrence of an Event of Default known to the Collateral Agent, the
Collateral Agent shall have no duty or obligation to verify or maintain the
perfection of any security interest created hereby.
7. Collateral Agent.
Limitation of the Collateral Agent's Liability;
Responsibilities of the Collateral Agent. The Collateral Agent's
responsibility and liability under this Agreement shall be limited as
follows: (i) the Collateral Agent does not represent, warrant or guaranty
to the holders of the Notes from time to time the performance of either the
2001 Trustee or the 2000 Trustee; (ii) the Collateral Agent shall have no
responsibility to the Company or the 2001 Trustee or the 2000 Trustee or
the holders of the Notes from time to time as a consequence of the
performance by the Collateral Agent hereunder, except for any gross
negligence or wilful misconduct of the Collateral Agent and except with
respect to claims based upon such gross negligence or wilful misconduct
that are successfully asserted against the Collateral Agent; (iii) the 2001
Trustee and the 2000 Trustee shall remain solely responsible for all
aspects of their respective business and conduct; and (iv) the Collateral
Agent is not obligated to supervise, inspect, or inform the Company or any
third party of any matter referred to above.
No implied covenants or obligations shall be inferred from this
Agreement against the Collateral Agent, nor shall the Collateral Agent be
bound by the provisions of any agreement beyond the specific term hereof.
Specifically and without limiting the foregoing, the Collateral Agent shall
in no event have any liability in connection with its capacity as
Collateral Agent or the efforts of the 2001 Trustee for the benefit of the
holders of the 2001 Notes and the efforts of the 2000 Trustee for the
benefit of the 2000 Notes, of any funds or U.S. Government Obligations held
by it hereunder, including without limitation any liability for any delay
not resulting from gross negligence or wilful misconduct in such capacity
as Collateral Agent or the efforts of the 2001 Trustee for the benefit of
the holders of the 2001 Notes and the benefit of the 2000 Trustee for the
benefit of the 2000 Notes, or for any loss of principal or income incident
to any such delay.
The Collateral Agent shall be entitled to rely upon any
judicial order or judgment, upon any written Opinion of Counsel or upon any
certification, instruction, notice, or other writing delivered to it by the
Company in compliance with the provisions of this Agreement without being
required to determine the authenticity or the correctness of any fact
stated therein or the propriety or validity of service thereof. The
Collateral Agent may act in reliance upon any instrument comporting with
the provisions of this Agreement or signature believed by it to be genuine
and may assume that any person purporting to give notice or receipt or
advice or make any statement or execute any document in connection with the
provisions hereof has been duly authorized to do so.
At any time, the Collateral Agent may request in writing an
instruction in writing from either the 2001 Trustee or the 2000 Trustee,
and may at its own option include in such request the course of action it
proposes to take and the date on which it proposes to act, regarding any
matter arising in connection with its duties and obligations hereunder;
provided, however, that the Collateral Agent shall state in such request
that it believes in good faith that such proposed course of action is
consistent with another identified provision of this Agreement. The
Collateral Agent shall not be liable to either the 2001 Trustee or the 2000
Trustee for acting without either the 2001 Trustee's Consent or the 2000
Trustee's Consent in accordance with such a proposal on or after the date
specified therein if (i) the specified date is at least two Business Days
after the Company receives the Security Agent's request for instructions
and its proposed course of action, which instructions shall have been
delivered to the Company at least two Business Days prior to such action
and (ii) prior to so acting, the Security Agent has not received the
written instructions requested from the Company, which instructions shall
have been delivered to the Company at least two Business Days prior to such
action.
The Collateral Agent may act pursuant to the written advice of
counsel chosen by it with respect to any matter relating to this Agreement
and (subject to this Section 7) shall not be liable for any action taken or
omitted in accordance with such advice.
The Collateral Agent shall not be called upon to advise any
party as to selling or retaining, or taking or refraining from taking any
action with respect to, any securities or other property credited
hereunder.
In the event of any ambiguity in the provisions of this
Agreement with respect to any funds or property credited hereunder, the
Collateral Agent shall be entitled to refuse to comply with any and all
claims, demands or instructions with respect to such property or funds, and
the Collateral Agent shall not be or become liable for its failure or
refusal to comply with conflicting claims, demands or instructions. The
Collateral Agent shall be entitled to refuse to act until either any
conflicting or adverse claims or demands shall have been finally determined
by a court of competent jurisdiction or settled by agreement between the
conflicting claimants as evidenced in a writing, satisfactory to the
Collateral Agent, in which event the Collateral Agent shall act in
accordance with such determination or agreement.
No provision of this Agreement shall require the Collateral
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder.
The Collateral Agent shall not be required to institute legal
proceedings of any kind and shall not be required to initiate or defend any
legal proceedings which may be instituted against it in respect of the
subject matter of this Agreement. If the Collateral Agent does elect to act
it will do so only to the extent that it is indemnified to its satisfaction
against the cost and expense of such defense or initiation.
8. Termination. This Agreement shall terminate automatically
following disbursement of all funds remaining in the Security Account
(including U.S. Government Obligations), unless sooner terminated by
agreement of the parties hereto (in accordance with the terms hereof and
not in violation of either of the Indentures); provided, however, that the
obligations of the Company under Section 5 (and any existing claims
thereunder) shall survive termination of this Agreement or the resignation
of the Security Agent.
9. Miscellaneous.
(a) Waiver. Any party hereto may specifically waive any breach
of this Agreement by any other party, but no such waiver shall be deemed to
have been given unless such waiver is in writing, signed by the waiving
party and specifically designating the breach waived, nor shall any such
waiver constitute a continuing waiver of similar or other breaches.
(b) Invalidity. If for any reason whatsoever any one or more of
the provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid in a particular case or in all cases, such
circumstances shall not have the effect of rendering any of the other
provisions of this Agreement inoperative, unenforceable or invalid, and the
inoperative, unenforceable or invalid provision shall be construed as if it
were written so as to effectuate, to the maximum extent possible, the
parties' intent.
(c) Assignment; Successors. This Agreement is personal to the
parties hereto, and the rights and duties of any party hereunder shall not
be assignable except with the prior written consent of each of the other
parties. Notwithstanding the foregoing, this Agreement shall inure to and
be binding upon the parties and their successors and permitted assigns.
(d) Benefit. The parties hereto and their successors and
permitted assigns, but no others, shall be bound hereby and entitled to the
benefits hereof; provided, however, that the holders of the Notes and their
permitted assigns shall be entitled to the benefits hereof and to enforce
this Agreement in accordance with the terms of the applicable Indenture.
(e) Time. Time is of the essence of each provision of this
Agreement.
(f) Entire Agreement; Amendments. This Agreement, the
Indentures and the terms of the Notes thereunder contain the entire
agreement among the parties with respect to the subject matter hereof and
supersede any and all prior agreements, understandings and commitments,
whether oral or written. This Agreement may be amended only by a writing
signed by a duly authorized representative of each party hereto.
(g) Notices. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail or sent by facsimile
(with a hard copy delivered in person or by mail promptly thereafter) and
addressed as follows:
To Collateral Agent, Security Agent, 2001 Trustee or 2000
Trustee, in each case addressed in its specific capacity:
Xxxxx Fargo Bank Minnesota, N.A.
Sixth & Marquette
MAC X0000-000
Xxxxxxxxxxx, XX 00000
Attn: Corporate Trust Services-Alamosa (Delaware), Inc.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
To the Company:
Alamosa (Delaware), Inc.
0000 X. Xxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx, III
Facsimile: 000-000-0000
Telephone: 000-000-0000
or at such other address as the specified entity most recently may have
designated in writing in accordance with this Section.
(h) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(i) Captions. Captions in this Agreement are for convenience
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(j) Choice of Law. The existence, validity, construction,
operation and effect of any and all terms and provisions of this Agreement
shall be determined in accordance with and governed by the laws of the
State of New York. The parties to this Agreement hereby agree that
jurisdiction over such parties and over the subject matter of any action or
proceeding arising under this Agreement may be exercised by a competent
Court of the State of New York, or by a United States Court sitting in New
York City. The Company hereby submits to the personal jurisdiction of such
courts, hereby waives personal service of process upon it and consents that
any such service of process may be made by certified or registered mail,
return-receipt requested, directed to the Company at its address last
specified for notices hereunder, and service so made shall be deemed
completed five (5) days after the same shall have been so mailed. All
actions and proceedings brought by the Company, or the Trustee against the
Security Agent relating to or arising from, directly or indirectly, this
Agreement shall be litigated only in Federal or New York State courts
within the State of New York.
(k) The Company hereby represents and warrants that this
Agreement has been duly authorized, executed and delivered on its behalf
and constitutes the legal, valid and binding obligation of the Company. The
execution, delivery and performance of this Agreement by the Company does
not violate any applicable law or regulation to which the Company is
subject and does not require the consent of any governmental or other
regulatory body to which the Company is subject, except for such consents
and approvals as have been obtained and are in full force and effect.
(l) Each of the Security Agent and the Collateral Agent hereby
represents and warrants that this Agreement has been duly authorized,
executed and delivered on its behalf and constitutes its legal, valid and
binding obligation.
IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the day first above written.
SECURITY AGENT:
XXXXX FARGO BANK MINNESOTA, N.A.,
as Security Agent
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Corporate Trust Officer
2001 TRUSTEE:(as to
Paragraph 6(b) only): XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Corporate Trust Officer
2000 TRUSTEE (as to
Paragraph 6(b) only): XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Corporate Trust Officer
COLLATERAL AGENT: XXXXX FARGO BANK MINNESOTA, N.A.,
as Collateral Agent
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Corporate Trust Officer
IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the day first above written.
COMPANY: ALAMOSA (DELAWARE), INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board
and CEO
EXHIBIT B TO SECURITY AGREEMENT
Form of Collateral Agent Payment Notice and Disbursement Request
(Letterhead of the Collateral Agent)
[Date]
Attn: Xxxxx Fargo Bank Minnesota, N.A.
Corporate Trust Services
Escrow Accounts
Re: Disbursement Request No. _____________
(indicate whether revised)
Ladies and Gentlemen:
We refer to the Security Agreement, dated as of January 31,
2001 (the "Security Agreement") among Alamosa (Delaware), Inc., a Delaware
corporation (the "Company"), Xxxxx Fargo Bank Minnesota, N.A., as security
agent (in such capacity the "Security Agent"), Xxxxx Fargo Bank Minnesota,
N.A., as collateral agent (in such capacity, the "Collateral Agent") for
Xxxxx Fargo Bank Minnesota, N.A., as trustee (in such capacity, the "2001
Trustee") under the 2001 Indenture (as defined herein) and for Xxxxx Fargo
Bank Minnesota, N.A., as trustee (in such capacity, the "2000 Trustee", and
together with the 2001 Trustee, the "Trustees") under the 2000 Indenture,
the 2001 Trustee (as to paragraph 6(b)) and the 2000 Trustee (as to
paragraph 6(b)). Capitalized terms used herein shall have the meaning given
in the Security Agreement.
This letter constitutes a Collateral Agent Payment Notice and
Disbursement Request under the Security Agreement.
[choose one of the following, as applicable]
The undersigned hereby notifies you that a scheduled interest
payment in the amount of $_________ is due and payable on ___________, ____
and requests a disbursement of funds contained in the Security Account in
such amount.
[The undersigned hereby authorizes you, pursuant to Section
3(d) of the Security Agreement, to release all Available Funds in the
Security Account to the Company (to an account designated by the Company in
writing) and to release all U.S. Government Obligations in the Security
Account to the Company (to an account designated by the Company in
writing).]
In connection with the requested disbursement, the undersigned
hereby notifies you that:
1. We have no actual knowledge that any Event of Default has
occurred and is continuing with respect to any of the Notes.
2. All prior disbursements from the Security Account have been
Applied.
3. Xxxxx Fargo Bank Minnesota, N.A.
ABA # 09100019
F/F/C: 0000000000
Credit to: 10622300
Ref: Alamosa
The Security Agent is entitled to rely on the foregoing in
disbursing funds relating to this Collateral Agent Payment Notice and
Disbursement Request.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Collateral Agent
By:
--------------------------------
Name:
Title:
EXHIBIT A TO SECURITY AGREEMENT
Form of Trustee Payment Notice and Disbursement Request
(Letterhead of the Applicable Trustee)
[Date]
Attn: Collateral Agent
Xxxxx Fargo Bank Minnesota, N.A.
Corporate Trust Services
Escrow Accounts
Re: Disbursement Request No. ___________________
(indicate whether revised)
Ladies and Gentlemen:
We refer to the Security Agreement, dated as of January 31,
2001 (the "Security Agreement") among Alamosa (Delaware), Inc., a Delaware
corporation (the "Company"), Xxxxx Fargo Bank Minnesota, N.A., as security
agent (in such capacity the "Security Agent"), Xxxxx Fargo Bank Minnesota,
N.A., as collateral agent (in such capacity, the "Collateral Agent") for
Xxxxx Fargo Bank Minnesota, N.A., as trustee (in such capacity, the "2001
Trustee") under the 2001 Indenture (as defined herein) and for Xxxxx Fargo
Bank Minnesota, N.A., as trustee (in such capacity, the "2000 Trustee", and
together with the 2001 Trustee, the "Trustees") under the 2000 Indenture,
the 2001 Trustee (as to paragraph 6(b)) and the 2000 Trustee (as to
paragraph 6(b)). Capitalized terms used herein shall have the meaning given
in the Security Agreement.
This letter constitutes a Trustee Payment Notice and
Disbursement Request under the Security Agreement.
[choose one of the following, as applicable]
The undersigned hereby notifies you that a scheduled interest
payment in the amount of $_________ is due and payable on ___________, ____
and requests that you for the benefit of us send to the Security Agent a
Collateral Agent Payment and Disbursement Request requesting disbursement
of funds contained in the Security Account in such amount.
[The undersigned hereby authorizes you, pursuant to Section
3(d) of the Security Agreement, to send to the Security Agent a Collateral
Agent Payment and Disbursement Notice to release all Available Funds in the
Security Account to the Company (to an account designated by the Company in
writing) and to release all U.S. Government Obligations in the Security
Account to the Company (to an account designated by the Company in
writing).]
In connection with the requested disbursement, the undersigned
hereby notifies you that:
1. We have no actual knowledge that any Event of Default has
occurred and is continuing with respect to any of the Notes.
2. All prior disbursements from the Security Account have been
Applied.
3. Xxxxx Fargo Bank Minnesota, N.A.
ABA # 09100019
F/F/C: 0000000000
Credit to: 10622300
Ref: Alamosa
The Collateral Agent is entitled to rely on the foregoing in
giving the Security Agent a Collateral Agent Payment Notice and
Disbursement Request requesting disbursement of funds relating to this
Trustee Payment Notice and Disbursement Request.
[XXXXX FARGO BANK MINNESOTA, N.A.,
as 2001 Trustee
By: ]
-------------------------------
Name:
Title:
[XXXXX FARGO BANK MINNESOTA, N.A.,
as 2001 Trustee
By: ]
-------------------------------
Name:
Title:
