This Waiver Agreement involves
Title: FIRST AMENDMENT AND WAIVER TO SECOND LIEN CREDIT AGREEMENT
Governing Law: New York Date: 5/7/2008
Industry: Communications Services Sector: Services
FIRST AMENDMENT AND WAIVER
SECOND LIEN CREDIT AGREEMENT
This FIRST AMENDMENT AND WAIVER TO SECOND LIEN CREDIT AGREEMENT, dated as of May 1, 2008 (this “ Amendment ”), to the Second Lien Credit Agreement referred to below, by and among the lenders identified on the signature pages hereof (such lenders, together with their respective successors and permitted assigns, are referred to hereinafter each individually as a “ Lender ” and collectively as the “ Lenders ”), GoAmerica, Inc., a Delaware corporation (“ Borrower ”) and Clearlake Capital Group, L.P., as administrative agent for the Lenders (in such capacity, and together with its successors and permitted assigns, the “ Administrative Agent ”).
W I T N E S S E T H
WHEREAS, Borrower, Administrative Agent and the Lenders are parties to that certain Second Lien Credit Agreement, dated as of January 10, 2008 (as amended, restated, supplemented or otherwise modified from time to time, the “ Second Lien Credit Agreement ”); and
WHEREAS, Administrative Agent and Required Lenders have agreed to waive, pursuant to and in accordance with the terms of the Second Lien Credit Agreement, certain Events of Default, in the manner, and on the terms and conditions provided for herein; and
WHEREAS, Borrower has requested, and Administrative Agent and Required Lenders have agreed, to amend the Second Lien Credit Agreement in the manner, and on the terms and conditions, provided for herein.
NOW THEREFORE , in consideration of the promises and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the Loan Parties, Administrative Agent and Lenders hereby agree as follows:
1. Definitions . Capitalized terms not otherwise defined herein (including in the Recitals hereto) shall have the meanings ascribed to them in the Second Lien Credit Agreement.
2. Waiver . Pursuant to Section 11.1(a)(2) of the Second Lien Credit Agreement, as of the First Amendment Effective Date (as hereinafter defined), Administrative Agent and Required Lenders hereby waive the Events of Default under Section 9.1(c) of the Second Lien Credit Agreement resulting solely from the failure of the Borrower to comply with Schedule 7.15(2) of the Second Lien Credit Agreement prior to the First Amendment Effective Date; provided , that the Borrower complies with such Schedule 7.15(2) as amended hereby.
3. Amendment . Pursuant to Section 11.1(a)(3) of the Second Lien Credit Agreement, as of the First Amendment Effective Date, Schedule 7.15(2) of the Second Lien Credit Agreement is hereby amended by deleting “90” where it appears in such Schedule 7.15(2) and substituting in lieu thereof “180” and by deleting “at least one year after the Scheduled Term Loan Maturity Date” and substituting in lieu thereof “no earlier than January 10, 2015”.
4. Remedies . This Amendment shall constitute a Loan Document. The breach by any Loan Party of any covenant or agreement in this Amendment (including Section 2 hereof) shall constitute an immediate Event of Default hereunder and under the other applicable Loan Documents.
5. Representations and Warranties . To induce Administrative Agent and Required Lenders to enter into this Amendment, the Borrower (and, to the extent set forth in any other Loan Document, each other Loan Party) hereby jointly and severally represents and warrants that:
(a) The execution, delivery and performance by each Loan Party of this Amendment and the performance of the Second Lien Credit Agreement as amended by this Amendment (the “ Amended Second Lien Credit Agreement ”) (i) are within such Loan Party’s corporate or similar powers and, at the time of execution thereof, have been duly authorized by all necessary corporate and similar action (including, if applicable, consent of the holders of its Securities), (ii) do not (A) contravene such Loan Party’s Constituent Documents, (B) violate any material Requirement of Law in any material respect, (C) in any material respect, conflict with, contravene, constitute a default or breach under any material Contractual Obligation of any Loan Party or any of its Subsidiaries, or result in or permit the termination or acceleration of any such material Contractual Obligation, or (D) result in the imposition of any Lien (other than a Permitted Lien) upon any property of any Loan Party or any of its Subsidiaries and (iii) do not require any Permit of, or filing with, any Governmental Authority or any consent of, or notice to, any Person.
(b) From and after its delivery to the Administrative Agent, this Amendment has been duly executed and delivered to the other parties hereto by each Loan Party party hereto and this Amendment and the Amended Second Lien Credit Agreement is the legal, valid and binding obligation of such Loan Party and is enforceable against such Loan Party in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, re