Exhibit 10.40.5
SECOND
WAIVER AGREEMENT
SECOND WAIVER AGREEMENT, dated as of June 7, 2002 (this "Waiver"), is
entered into by and among HORIZON PERSONAL COMMUNICATIONS, INC., an Ohio
corporation (the "Company"), BRIGHT PERSONAL COMMUNICATIONS SERVICES, LLC, an
Ohio limited liability company ("Bright") (each of the Company and Bright,
individually a "Borrower" and collectively, the "Borrowers"), HORIZON PCS, INC.,
a Delaware corporation (the "Parent"), those Subsidiaries of the Parent listed
on the signature pages hereto (together with the Parent, individually a
"Guarantor" and collectively the "Guarantors"; the Guarantors, together with the
Borrowers, individually a "Credit Party" and collectively the "Credit Parties"),
the lenders party hereto (the "Lenders"), FIRST UNION NATIONAL BANK, as
Administrative Agent (the "Administrative Agent"), WESTDEUTSCHE LANDESBANK
GIROZENTRALE, as Syndication Agent and Arranger (the "Syndication Agent"), and
FORTIS CAPITAL CORP., as Documentation Agent (the "Documentation Agent").
W I T N E S S E T H
WHEREAS, the Borrowers, the Guarantors, the Administrative Agent, the
Syndication Agent, the Documentation Agent and the Lenders are parties to that
certain Credit Agreement dated as of September 26, 2000 (as previously amended
and as amended, modified, supplemented or restated from time to time, the
"Credit Agreement"; capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement unless otherwise defined herein);
WHEREAS, the Credit Parties have notified the Administrative Agent that an
Event of Default exists under the Credit Agreement as a result of the violation
by the Credit Parties of the Consolidated EBITDA covenant set forth in Section
8.1(d) of the Credit Agreement for the quarter ending March 31, 2002 (the
"Acknowledged Event of Default");
WHEREAS, pursuant to that certain Waiver Agreement dated as of May 9, 2002
among the Credit Parties, the Administrative Agent and the Lenders party
thereto, the Required Lenders have agreed to waive the Acknowledged Event of
Default until June 15, 2002;
WHEREAS, the Credit Parties have requested that the Required Lenders
continue to waive the Acknowledged Event of Default until June 28, 2002; and
WHEREAS, the Required Lenders have agreed to such waiver subject to the
terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
WAIVER
1.1 Waiver. From and after the date hereof until the earlier of (i) the
occurrence of any other Event of Default or (ii) June 28, 2002 (such date, the
"Waiver Termination Date"), the Required Lenders hereby waive the Event of
Default resulting from the Acknowledged Event of Default. It is acknowledged and
agreed by the parties hereto that from and after the date hereof until the
Waiver Termination Date, the Borrowers (i) shall not request, nor shall the
Lenders be obligated to provide, Revolving Loans pursuant to Section 2.1 of the
Credit Agreement as long as the Borrower's cash and cash equivalents (excluding
restricted cash) exceed $10,000,000 and (ii) shall have at all times on deposit
not less than $105,000,000 in Term Loan A proceeds in account number CP-36484-16
with UBS PaineWebber, Inc. and shall provide the Administrative Agent with such
reports, documentation and other information requested thereby to the extent
deemed necessary by the Administrative Agent to verify and/or monitor such
account. Failure by the Credit Parties to abide by the provisions hereof and to
execute an amendment to the Credit Agreement satisfactory to the Required
Lenders on or before the Waiver Termination Date shall result in an immediate
Event of Default under the Credit Agreement and the Lenders hereby reserve the
right to declare an Event of Default based upon the Acknowledged Event of
Default at such time to the extent deemed necessary thereby. Except for the
specific, one-time limited waiver set forth above, nothing set forth herein or
contemplated hereby is intended to constitute a waiver of (i) any rights or
remedies available to the Lenders or the Administrative Agent under the Credit
Agreement or any other Credit Document or under applicable law (all of which
rights and remedies are hereby expressly reserved by the Lenders and the
Administrative Agent) or (ii) the Credit Parties' obligation to comply fully
with any duty, term, condition, obligation or covenant contained in the Credit
Agreement and the other Credit Documents.
SECTION 2
CLOSING CONDITIONS
2.1 Closing Conditions.
This Waiver shall be effective (the "Waiver Effective Date") at such time
as the following conditions shall have been satisfied (in form and substance
reasonably acceptable to the Administrative Agent):
(a) Waiver. Receipt by the Administrative Agent of a copy of this
Waiver duly executed by each of the Credit Parties and the Required
Lenders.
(b) Fees and Expenses. The Borrowers shall have paid in full all
reasonable fees and expenses of the Administrative Agent in connection with
the preparation, execution and delivery of this Waiver, including, without
limitation, the fees and expenses of Xxxxx & Xxx Xxxxx, PLLC.
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SECTION 3
MISCELLANEOUS
3.1 Terms. The term "Credit Agreement" as used in each of the Credit
Documents shall hereafter mean the Credit Agreement as modified by this Waiver.
Except as specifically modified hereby or otherwise agreed, the Credit Agreement
is hereby ratified and confirmed and shall remain in full force and effect
according to its terms.
3.2 Representations and Warranties of Credit Parties. Each of the Credit
Parties represents and warrants as follows:
(a) It has taken all necessary action to authorize the execution,
delivery and performance of this Waiver.
(b) This Waiver has been duly executed and delivered by such Person
and constitutes such Person's legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforceability may
be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting creditors'
rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in
equity).
(c) No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or governmental authority or
third party is required in connection with the execution, delivery or
performance by such Person of this Waiver.
(d) The representations and warranties set forth in Article V of the
Credit Agreement are, subject to the limitations set forth therein, true
and correct in all material respects as of the date hereof (except for
those which expressly relate to an earlier date).
3.3 Acknowledgment of Guarantors. The Guarantors acknowledge and consent to
all of the terms and conditions of this Waiver and agree that this Waiver and
all documents executed in connection herewith do not operate to reduce or
discharge the Guarantors' obligations under the Credit Documents.
3.4 Credit Document. This Waiver shall constitute a Credit Document under
the terms of the Credit Agreement.
3.5 Entirety. This Waiver and the other Credit Documents embody the entire
agreement between the parties hereto and supersede all prior agreements and
understandings, oral or written, if any, relating to the subject matter hereof.
3.6 Counterparts; Telecopy. This Waiver may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. Delivery of an
executed counterpart to this Waiver by telecopy shall be effective as an
original and shall constitute a representation that an original will be
delivered.
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3.7 General Release. In consideration of the Required Lenders entering into
this Waiver, the Credit Parties hereby release the Administrative Agent, the
Lenders, and the Administrative Agent's and the Lenders' respective officers,
employees, representatives, agents, counsel and directors from any and all
actions, causes of action, claims, demands, damages and liabilities of whatever
kind or nature, in law or in equity, now known or unknown, suspected or
unsuspected to the extent that any of the foregoing arises from any action or
failure to act under the Credit Agreement or the other Credit Documents on or
prior to the date hereof.
3.8 GOVERNING LAW. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA.
3.9 Consent to Jurisdiction; Service of Process; Arbitration. The
jurisdiction, services of process and arbitration provisions set forth in
Sections 12.5 and 12.6 of the Credit Agreement are hereby incorporated by
reference, mutatis mutandis.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Waiver to be duly executed and delivered as of the date first above
written.
BORROWERS: HORIZON PERSONAL COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: CFO
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BRIGHT PERSONAL COMMUNICATIONS SERVICES, LLC
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: CFO
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GUARANTORS: HORIZON PCS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: CFO
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ADMINISTRATIVE AGENT/ LENDERS:
FIRST UNION NATIONAL BANK,
as Administrative Agent and as a Lender
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Vice President
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LENDERS (continued): WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH,
as Syndication Agent and Arranger
and as a Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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LENDERS (continued): FORTIS CAPITAL CORP.,
as Documentation Agent and as a Lender
By:
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Name:
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Title:
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LENDERS (continued): COBANK, ACB
By: /s/ Xxxxxxxxxxx X. Xxxx
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Name: Xxxxxxxxxxx X. Xxxx
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Title: V.P.
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LENDERS (continued): MOTOROLA CREDIT CORPORATION
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: Vice President
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LENDERS (continued): NATIONAL CITY BANK
By: /s/ Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxx
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Title: Senior Vice President
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LENDERS (continued): BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:
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Name:
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Title:
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LENDERS (continued): CIT LENDING SERVICES CORPORATION
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Title: Vice President
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LENDERS (continued): IBM CREDIT CORPORATION
By:
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Name:
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Title:
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