SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of June 29, 2001 (this
"Second Amendment"), 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 requested certain amendments to the Credit
Agreement; and
WHEREAS, the Required Lenders have agreed to such amendments 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
AMENDMENTS
1.1 DEFINITION OF APPLICABLE PERCENTAGE. The tables set forth in the
definition of "Applicable Percentage" in Section 1.1 of the Credit Agreement are
hereby amended and restated in their entirety to read as follows:
STAGE 1 COVENANT PERIOD
LIBOR Rate
Alternate Base Margin for
Rate Margin for Revolving Loans
Revolving Loans Alternate Base and the Term LIBOR Rate
and the Term Rate Margin for Loan A; Letter of Margin for the
Loan A the Term Loan B Credit Fees Term Loan B
---------------- ---------------- ------------------ ---------------
2.75% 3.25% 3.75% 4.25%
---------------- ---------------- ------------------ ---------------
STAGE 2 COVENANT PERIOD
--------------------------
LIBOR
Alternate Rate
Base Rate Margin
Margin for
for Alternate Revolving
Revolving Base Rate Loans and LIBOR
Loans Margin the Term Rate
and the for the Loan A; Margin for
Leverage Term Term Letter of the Term
Level Ratio Loan A Loan B Credit Fees Loan B
----- ---------------- ---------- ---------- ------------ -----------
I Greater than or
equal to
10.0 to 1.0
2.50% 3.25% 3.50% 4.25%
---------------- ---------- ---------- ------------ -----------
II Less than
10.0 to 1.0
but greater than
or equal to
8.0 to 1.0 2.25% 3.25% 3.25% 4.25%
---------------- ---------- ---------- ------------ -----------
III Less than
8.0 to 1.0
but greater than
or equal to
7.0 to 1.0 2.00% 3.25% 3.00% 4.25%
---------------- ---------- ---------- ------------ -----------
IV Less than
7.0 to 1.0
but greater than
or equal to
6.0 to 1.0 1.75% 3.25% 2.75% 4.25%
---------------- ---------- ---------- ------------ -----------
V Less than
6.0 to 1.0
but greater than
or equal to
5.0 to 1.0 1.50% 3.25% 2.50% 4.25%
---------------- ---------- ---------- ------------ -----------
VI Less than
5.0 to 1.0
1.25% 3.25% 2.25% 4.25%
---------------- ---------- ---------- ------------ -----------
1.2 STAGE 1 FINANCIAL COVENANTS. Section 8.1(d) and (e) of the Credit
Agreement are hereby amended and restated in their entirety to read as follows:
SECTION 8.1 STAGE 1 COVENANTS.
Until all of the Credit Party Obligations (other than inchoate indemnity
Credit Party Obligations) have been paid and satisfied in full and the Credit
Facilities have been terminated, unless consent has been obtained in the manner
set forth in Section 12.11 hereof, during the Stage 1 Covenant Period the Credit
Parties will not:
***********
(d) EBITDA. As of the last day of each fiscal quarter occurring during
the Stage 1 Covenant Period, (i) permit the Consolidated EBITDA gains for
the Borrowers on a combined basis for such fiscal quarter to be less than
the amount set forth below opposite such date or (ii) permit the
Consolidated EBITDA losses for the Borrowers on a combined basis for such
fiscal quarter to exceed the amount set forth below opposite such date, as
applicable:
Fiscal Quarter Ended Amount
September 30, 2000 ($13,000,000)
--------------
December 31, 2000 ($20,000,000)
--------------
March 31, 2001 ($13,250,000)
--------------
June 30, 2001 ($19,631,000)
--------------
September 30, 2001 ($25,135,000)
--------------
December 31, 2001 ($36,105,000)
--------------
March 31, 2002 ($14,031,000)
--------------
June 30, 2002 ($13,592,000)
--------------
September 30, 2002 ($15,656,000)
--------------
December 31, 2002 ($19,175,000)
--------------
March 31, 2003 ($3,223,000)
--------------
June 30, 2003 ($2,558,000)
--------------
September 30, 2003 ($3,423,000)
--------------
December 31, 2003 ($5,489,000)
--------------
March 31, 2004 $ 11,064,000
-------------------- --------------
(e) Minimum Total Revenues. As of the last day of each fiscal quarter
occurring during the Stage 1 Covenant Period, permit Total Revenues to be
equal or less than the amount set forth below opposite such date:
Fiscal Quarter Ended Amount
September 30, 2000 $ 4,311,000
-----------
December 31, 2000 $ 6,416,000
-----------
March 31, 2001 $ 8,500,000
-----------
June 30, 2001 $12,900,000
-----------
September 30, 2001 $16,000,000
-----------
December 31, 2001 $20,300,000
-----------
March 31, 2002 $24,700,000
-----------
June 30, 2002 $27,000,000
-----------
September 30, 2002 $32,800,000
-----------
December 31, 2002 $37,200,000
-----------
March 31, 2003 $43,700,000
-----------
June 30, 2003 $46,700,000
-----------
September 30, 2003 $54,900,000
-----------
December 31, 2003 $61,400,000
-----------
March 31, 2004 $62,600,000
-------------------- -----------
************
SECTION 2
CLOSING CONDITIONS
2.1 CLOSING CONDITIONS.
This Second Amendment shall be effective as of the date first above written
(the "Second Amendment Effective Date") at such time as the following conditions
shall have been satisfied (in form and substance reasonably acceptable to the
Administrative Agent):
(a) Second Amendment. Receipt by the Administrative Agent of a copy of
this Second Amendment duly executed by each of the Credit Parties and the
Required Lenders.
(b) Resolutions. Receipt by the Administrative Agent of copies of
resolutions of the Board of Directors of each of the Credit Parties
approving and adopting this Second Amendment, the transactions contemplated
herein and authorizing execution and delivery hereof, certified by a
secretary or assistant secretary of such Credit Party to be true and
correct and in force and effect as of the date hereof.
(c) Amendment Fee. Receipt by the Administrative Agent, on behalf of
each Lender that executes this Second Amendment by 5:00 p.m. EDT on June
29, 2001, an amendment fee equal to 0.25% of the aggregate Commitments of
each such Lender.
SECTION 3
MISCELLANEOUS
3.1 AMENDED TERMS. The term "Credit Agreement" as used in each of the
Credit Documents shall hereafter mean the Credit Agreement as amended by this
Second Amendment. Except as specifically amended 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 Second Amendment.
(b) This Second Amendment has been duly executed and delivered by such
Person and constitutes such Person's legal, valid and binding obligations,
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 Second Amendment.
(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 Second Amendment and agree
that this Second Amendment 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 Second Amendment shall constitute a Credit
Document under the terms of the Credit Agreement.
3.5 ENTIRETY. This Second Amendment 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 Second Amendment 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 Second Amendment by telecopy shall
be effective as an original and shall constitute a representation that an
original will be delivered.
3.7 GOVERNING LAW. THIS SECOND AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH
CAROLINA.
3.8 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]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Second Amendment to be duly executed and delivered as of the date first
above written.
BORROWERS: HORIZON PERSONAL COMMUNICATIONS,
INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: President
-----------------------------------
BRIGHT PERSONAL COMMUNICATIONS
SERVICES, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: President
-----------------------------------
GUARANTORS: HORIZON PCS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: President
-----------------------------------
ADMINISTRATIVE AGENT/ FIRST UNION NATIONAL BANK,
LENDERS: as Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
-----------------------------------
LENDERS (CONTINUED): WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH,
as Syndication Agent and Arranger and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Managing Director
-----------------------------------
By: /s/ ▇▇▇▇▇ Dervatoy
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Name: ▇▇▇▇▇ Dervatoy
------------------------------------
Title: Associate Director
-----------------------------------
LENDERS (CONTINUED): FORTIS CAPITAL CORP.,
as Documentation Agent and as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Managing Director
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By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
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Title: Assistant Vice President
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LENDERS (CONTINUED): COBANK, ACB
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President
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LENDERS (CONTINUED): MOTOROLA CREDIT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
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Title: Vice President
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LENDERS (CONTINUED): NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Senior Vice President
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LENDERS (CONTINUED): BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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LENDERS (CONTINUED): CIT LENDING SERVICES CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ Defabrizie
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Name: ▇▇▇▇▇▇▇▇ Defabrizie
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Title: V.P.
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LENDERS (CONTINUED): IBM CREDIT CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Manager, Americas Commercial
Financing
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